OPERATIONS AND MAINTENANCE AGREEMENT THIS OPERATIONS AND MAINTENANCE AGREEMENT, ( Agreement ) dated for reference purposes only,, is made by and among LOS ANGELES COUNTY METROPOLITAN TRANSPORTATION AUTHORITY, ( LACMTA ), the SOUTHERN CALIFORNIA REGIONAL RAIL AUTHORITY, a five-county joint powers authority, created pursuant to State of California Public Utilities Code Section 130255 and California Government Code Section 6500 et seq. ( SCRRA ) and the CITY OF BURBANK and the CITY OF LOS ANGELES (jointly and severally, the PERMITTEE ). The parties agree: RECITALS A. LACMTA is the owner of property located at Milepost 13.7 on the railroad right-of-way owned by LACMTA and managed by SCRRA, in the cities of Burbank and Los Angeles California as illustrated on EXHIBIT A attached hereto and made a part hereof ( Property ). B. LACMTA is in the process of designing and constructing a train station only, with boarding platforms, canopies, structures, passenger drop-off areas, walkways, bike racks/lockers, and landscaped areas, ( North Burbank Station ) on the Property. LACMTA has agreed to construct the North Burbank Station without provisions for parking provided PERMITTEE operates and maintains the North Burbank Station. C. PERMITTEE has agreed to operate, maintain and repair the North Burbank Station once the North Burbank Station is constructed. D. SCRRA is responsible for operating and maintaining the railroad right of way adjacent to the North Burbank Station, and certain improvements and equipment in the North Burbank Station. E. PERMITTEE is willing to perform the operation, maintenance and repair duties and obligations as described herein, and LACMTA is willing to grant to PERMITTEE, its contractors, employees, and agents, and PERMITTEE is willing to accept, a right of entry permit onto the Property, all subject to the following terms and conditions. TERMS AND CONDITIONS 1. Right of Entry. LACMTA grants to PERMITTEE a non-exclusive permit to enter upon the Property for the purpose of operating, maintaining and repairing the North Burbank Station in accordance with this Agreement ( Purpose ). EXHIBIT A-1
a. PERMITTEE s right to enter and use the Property is personal to PERMITTEE, its contractors, employees, and agents and therefore is not assignable. PERMITTEE shall ensure that its contractors, employees and agents comply with all terms and conditions hereof including without limitation the indemnity, contribution and insurance provisions set forth below. b. This permit is granted to PERMITTEE for the Purpose of PERMITTEE performing all work in compliance with the requirements set forth in this Agreement. The granting of this permit shall not be construed to provide PERMITTEE with any rights beyond those expressly provided herein or any rights to purchase the Property. 2. Term. The term of this Agreement shall commence upon full completion of all construction activities, as evidenced by LACMTA s recordation of a notice of completion (the COMMENCEMENT DATE ), and continue in effect for as long as the North Burbank Station is served by commuter or passenger trains and any portion of the North Burbank Station remains on the Property, unless terminated earlier by mutual, written consent. 3. Condition of Property. PERMITTEE upon its acceptance of the Property for the Purpose agrees that the Property is suitable for the use for which this Agreement is granted and is in good and satisfactory condition. 4. Performance of Work. Any work performed or caused to be performed by PERMITTEE on the North Burbank Station or the Property shall be performed (a) at PERMITTEE s sole cost and expense; (b) in accordance with any and all applicable laws, rules and regulations (including LACMTA s and SCRRA s rules and regulations); and (c) in a manner which is (i) equal to or greater than the then applicable standards of the industry for such work, and (ii) satisfactory to LACMTA and SCRRA. Prior to commencement of any construction, reconstruction, installation, restoration, alteration, repair, replacement or removal (other than normal maintenance, routine repair and restoration, and installation of routine and minor transit-related appurtenances/amenities) (hereinafter, Work ) on the Property, PERMITTEE shall submit work plans to LACMTA and SCRRA for review and approval. Any such Work must be carried out pursuant to work plans approved in writing by LACMTA. In addition, PERMITTEE shall provide LACMTA and SCRRA with at least 10 calendar days written notice prior to commencement of any Work on the Property or the North Burbank Station, except in cases of emergency, in which event PERMITTEE shall notify LACMTA S representative, Director, Real Property Management and Development at (213) 922-2435 and SCRRA S representative, Right of Way Coordinator at (909) 392-8463 personally or by phone prior to commencing any Work. Unless otherwise requested by LACMTA, upon completion of any Work, PERMITTEE shall restore the Property to its condition immediately preceding the commencement of such Work. Normal maintenance includes trash removal; cleaning and maintenance of canopies, planted/landscaped areas, bike EXHIBIT A-2
racks/lockers, drainage systems, and passenger drop-off areas; graffiti removal; and lighting replacements. Routine repair and restoration includes minor repair work and resurfacing with like materials necessary to restore finished surfaces to original line and grade. Installation of minor transit-related appurtenances/amenities includes facilities such as bicycle racks, signs and informational kiosks located away from the main boarding platform areas. 5. Right of Way Responsibilities. a. PERMITTEE and each of their officials, officers, employees, agents, assigns, contractors, and vendors shall not interfere with the operation of passenger or commuter train services unless PERMITTEE has received prior written permission from SCRRA and made arrangements to comply with all SCRRA safety and protective services.. b. SCRRA may require PERMITTEE, its elected officials, officers, employees, agents, assigns, contractors and vendors to attend SCRRA safety orientation class prior to receiving permission to work on the railroad right-of-way. c. PERMITTEE shall immediately contact SCRRA in the event of any condition which might impact the safe operation of the railroad. The following are SCRRA s emergency numbers: Metrolink Operations Center (909) 593-0661 Signal Emergencies and Grade Crossing Problems (888) 446-9721 6. North Burbank Station Responsibilities. PERMITTEE shall be responsible for the operation, security, repair and maintenance of the North Burbank Station, including the platforms that extend over and on the railroad right-of-way. PERMITTEE, at its sole expense, shall perform all necessary maintenance, operation, repair, reconstruction and replacement of the North Burbank Station to keep the North Burbank Station in good order and proper condition and in satisfaction of all laws, regulations and guidelines. The PERMITTEE S responsibilities include, but are not limited to: (a) maintaining, repairing and sweeping, cleaning and resurfacing all North Burbank Station passenger drop-off areas, platform areas and related access areas; (b) maintaining, repairing and cleaning all North Burbank Station canopies, lighting systems, drainage systems, irrigation systems, structures, signs and other North Burbank Station improvements or fixtures, including reconstruction and replacement of the North Burbank Station; (c) removing all trash, litter and debris (d) removing all graffiti within 48 hours of being first informed of the graffiti, when practical; (e) keeping the property free of weeds; (f) maintaining all planted/landscaped areas; (g) providing security for the North Burbank Station; and (h) general upkeep, and repair of the North Burbank Station. The PERMITTEE EXHIBIT A-3
maintenance responsibility shall be performed on a regular basis so as to keep the North Burbank Station in good order, condition and repair at all times. a. Notwithstanding anything to the contrary contained herein, PERMITTEE shall not be responsible for the repair or maintenance of the ticket vending machines ( TVMs ), passenger information phone, LED Video Monitors ( LVMs ), public address/changeable message sign ( PA/CMS ) equipment, and equipment contained within the SCRRA s side of the communications shelter building ( SCRRA Communication Equipment ). The TVMs, Passenger Information Phone, LVMs, PA/CMS and SCRRA Communication Equipment are collectively referred to as the SCRRA Station Equipment. The Regional Integration of Intelligent Transportation Systems monitors and accompanying infrastructure ( RIITS ) will be maintained by LACMTA or its contractor under the RIITS program. b. Notwithstanding anything to the contrary contained herein, PERMITTEE shall not be responsible for reconstruction and replacement of the North Burbank Station when (1) the Station is damaged or destroyed due to any natural disaster, calamity or act of God or other unforeseen occurrence not due to any fault or negligence on the part of PERMITTEE, (2) reconstruction or replacement is no longer in the best interest of the parties, (3) the Station is likely to be replaced by the California High Speed Rail Project or any other passenger rail project, or (4) reconstruction or replacement is unreasonably obstructed or delayed by the actions of any property owner or a governmental agency having jurisdiction over the Station. c. PERMITTEE acknowledges that SCRRA, its officers, employees, agents, assigns, contractors and vendors, have the right to concurrently use the North Burbank Station to the extent reasonably necessary to operate and maintain train equipment within the railroad right-of-way and to operate, maintain and repair the SCRRA Station Equipment. 7. North Burbank Station Utilities. a. PERMITTEE, at its sole expense, shall provide and pay for all utilities and other services necessary to operate, repair, and maintain the Station as set forth herein. Such utilities and services shall include, but not be limited to, any electrical, gas, water, sewer, and security, or trash removal service necessary for the operation of the Station. b. SCRRA, at its sole expense, shall provide and pay for all utilities costs associated with the operation and maintenance of the SCRRA Station Equipment. 8. Indemnity. EXHIBIT A-4
a. The City of Burbank and the City of Los Angeles, individually and jointly and severally, on behalf of itself, its agents, employees, contractors, successors and assigns, shall indemnify, defend, release and forever hold harmless LACMTA and SCRRA, each of their subsidiaries, affiliates, and their respective members, directors, partners, officers, commissioners, employees, agents, successors and assigns (individually and collectively, Indemnitees ), to the maximum extent allowed by law, which Indemnities or any of them may sustain, incur or become liable for, including without limitation, loss of or damage to property or injury to or death of any person or persons arising out of or in any manner connected with the North Burbank Station other than train accidents or derailments, PERMITTEE s use of the Property, exercise of this permit, or operation, maintenance and repair of the North Burbank Station, except to the extent caused by or resulting from the RIITS, defective design or construction of the original station by LACMTA, or the gross negligence or willful misconduct of an Indemnitee. This indemnity and defense obligation shall survive the termination of this Agreement. b. SCRRA shall defend, indemnify and hold harmless the City of Burbank and the City of Los Angeles and each of their respective officers, employees, agents and contractors, to the maximum extent allowed by law, from and against any and all loss, claims, demands, liabilities, fines, penalties, liens, claims of lien, administrative procedures, damages (including consequential damages), costs and expenses (including attorney and expert fees and defense cost), including but not limited to, bodily injury, death, personal injury or property damage (including that of SCRRA) arising out of or connected with any alleged act and/or omission of SCRRA, its officer, employees, agents, assigns, contractors, and vendors, or in connection with any work, authority, presence or jurisdiction delegated to SCRRA under this Agreement, including train accidents or derailments. This indemnity and defense obligation shall survive the termination of this Agreement. c. LACMTA or its RIITS contractor shall defend, indemnify and hold harmless the City of Burbank and the City of Los Angeles and each of their respective officers, employees, agents and contractors, to the maximum extent allowed by law, from and against any and all loss, claims, demands, liabilities, fines, penalties, liens, claims of lien, administrative procedures, damages (including consequential damages), costs and expenses (including attorney and expert fees and defense cost), including but not limited to, bodily injury, death, personal injury or property damage (including that of LACMTA) arising out of or connected with any alleged act and/or omission of LACMTA, its officer, employees, agents, assigns, contractors, and vendors, or in connection with work on or the presence of the RIITS in the North Burbank Station. This indemnity and defense obligation shall survive the termination of this Agreement. EXHIBIT A-5
9. Compliance with Law. PERMITTEE, at its expense, shall comply with all applicable federal, state and local laws, ordinances, regulations, rules and orders with respect to the use of the Property. PERMITTEE and those entitled to exercise the rights granted herein shall exercise all due diligence in completing their activities on the Property in a professional manner. 10. Insurance. a. While this Agreement is in effect, PERMITTEE and its contractors shall, at its sole cost and expense, obtain and maintain in full force and effect throughout the term of this Agreement, insurance, as required by LACMTA, and described in EXHIBIT B attached hereto. b. PERMITTEE shall pay all premiums and assessments on the insurance coverage required and shall provide LACMTA certificates of insurance required to be maintained by PERMITTEE prior to the date of the commencement of any activities by same on the Property. Each certificate shall expressly provide that such policies shall not be cancelable or otherwise subject to modification except after thirty (30) calendar days prior written notice to LACMTA and SCRRA. c. Notwithstanding the foregoing, the insurance requirements may be satisfied by providing evidence that PERMITTEE is legally self-insured. PERMITTEE agrees that any program of self-insurance shall protect the interests of LACMTA and SCRRA in the same manner as those interests would have been protected had a policy of commercial insurance been in effect. 11. Inspection by LACMTA and SCRRA. LACMTA and SCRRA may inspect the Property at any or all times. 12. Notices to LACMTA shall be given as follows: Los Angeles County Metropolitan Transportation Authority One Gateway Plaza, Mail Stop 99-18-4 Los Angeles, California 90012 Attention: Jeanet Owens Senior Executive Officer, Regional Rail 13. Notices to SCRRA shall be given as follows: 14. Notices to PERMITTEE shall be given as follows: City of Burbank: EXHIBIT A-6
City of Los Angeles: All written notices shall be deposited in the United States mail, postage prepaid, or delivered personally or by overnight courier. 15. Conflict of Interest. The Parties hereto agree that to their knowledge, no Board member, officer or employee of the Los Angeles County Metropolitan Transportation Authority has any interest, whether contractual, non-contractual, financial, or otherwise, in this transaction, and that if any such interest becomes known, disclosure of all such information will be made in writing to the other party or parties, even if such interest would not be considered a conflict of interest under the laws of the State of California. 16. Contribution. a. California Government Code section 895.2 imposes certain tort liability jointly upon public entities who are parties to an agreement under which some service, function or act is to be performed. Section 895.4 provides that the public entitles may provide for contribution or indemnification by any or all of the public entities upon any liability arising out of the performance of the agreement. Section 8 hereof constitutes the agreement of the parties in regard to indemnity, and this Section 16 governs contribution in the event a public entity is held liable upon any judgment for damages caused by a negligent or wrongful act or omission occurring in the performance of this Agreement. In such an event the indemnifying party under Section 8 shall contribute 100% of the judgment for damages, and shall, regardless of the joint and several tort liability imposed by Section 895.2, fully perform its obligations to indemnify and hold the other parties harmless as set forth in Section 8 hereof. b. In the event the City of Burbank performs any of the covenants and obligations of the PERMITTEE under this Agreement, the City of Los Angeles shall reimburse the City of Burbank for one/third of the direct, actual, and reasonable costs and expenses incurred by the City of Burbank in performing this Agreement. In the event the City of Los Angeles performs any of the covenants and obligations of the PERMITTEE under this Agreement, the City of Burbank shall reimburse the City of Los Angeles two thirds of the direct, actual, and reasonable costs and expenses incurred by the City of Los Angeles in performing this Agreement. The City of Burbank and the City of Los Angeles shall abide by the procedures for such reimbursement, and shall have all the rights and obligations regarding audit of such costs and expenses and dispute resolution in connection therewith as set forth on EXHIBIT C attached hereto and incorporated herein by reference. EXHIBIT A-7
Reimbursement and contribution between the City of Burbank and the City of Los Angeles shall not be a condition to PERMITTEE s performance under this Agreement, and the City of Burbank and the City of Los Angeles shall be jointly and severally liable for all obligations, acts and omissions of PERMITTEE under this Agreement. 17. Miscellaneous. a. The parties each hereby represent and warrant that the persons executing this Agreement on its behalf have express authority to do so, and, in so doing, bind the party hereto. b. This Agreement contains the entire agreement between the parties with respect to the subject matter addressed herein and supersedes all prior written and oral agreements between the parties in regard thereto. c. If a court or other body of competent jurisdiction finds, or the parties mutually believe, and provision of this Agreement, or portion thereof, to be invalid or unenforceable, such provision will be enforced to the maximum extent permissible so as to affect the intent of the parties, and the remainder of this Agreement will continue in full force and effect. d. Dispute Resolution. Any dispute, claims, or other matters between the parties concerning this Agreement shall be resolved by LACMTA s Chief Executive Officer, or his/her designee, and the City of Burbank City Manager, and if unresolved, the parties may agree to submit all such unresolved claims, disputes or other matters in question to mediation prior to the institution of any litigation. e. Cost of Litigation. If any legal action is necessary to enforce any provision of this Agreement or to obtain damages by reason of an alleged breach of any provisions of this Agreement to the extent such legal action is not covered by the indemnity obligations of a party as set forth in this Agreement, the parties shall each pay their own costs and expenses. f. No provision of this Agreement may be waived except by a writing executed by the party against whom the waiver is to be effective. A party s failure to enforce any provision of this Agreement shall neither be construed as a waiver of the provision nor prevent the party from enforcing any other provision of this Agreement. g. No provision of this Agreement may be amended or otherwise modified except by a writing signed by all of the parties to this Agreement. h. The parties may execute this Agreement in counterparts, each of which is deemed an original, but all of which together constitute one and the same agreement. This EXHIBIT A-8
Agreement may be delivered by facsimile transmission, and facsimile copies of executed signature pages shall be binding as originals. [Signatures on Next Page] EXHIBIT A-9
LACMTA: LOS ANGELES COUNTY METROPOLITAN TRANSPORTATION AUTHORITY BY: Title: Date: SCRRA: SOUTHERN CALIFORNIA REGIONAL RAIL AUTHORITY BY: Title: Date: PERMITEE: CITY OF BURBANK BY: Title: Date: CITY OF LOS ANGELES BY: Title: Date: EXHIBIT A-10
EXHIBIT A Property Description Overall Station Site Plan EXHIBIT A-11
EXHIBIT B Insurance EXHIBIT A-12
EXHIBIT C Costs Sharing Allocation Procedures between City of Burbank and City of Los Angeles The City of Burbank and City of Los Angeles, acting jointly as PERMITTEE under that certain Operations and Maintenance Agreement dated (the Agreement ), agree to share responsibilities of operating and maintaining the North Burbank Station under the terms of these procedures. The following outlines the terms of this joint responsibility. 1. Cost Share. The footprint of the north Burbank Station lies approximately 1/3 within the City of Los Angeles and 2/3 within the City of Burbank. The City of Los Angeles and City of Burbank agree to split all costs associated with the Agreement such that 1/3 of the costs be paid by the City of Los Angeles and 2/3 of the cost be paid by the City of Burbank. 2. Lead Operator. The City of Burbank agrees to be the lead operator of operations and maintenance costs for the North Burbank Station. The City of Los Angeles agrees to be the Supporting Operator. The Lead Operator agrees to secure all services required to maintain the station per the terms of this agreement. The Supporting Operator agrees to reimburse Lead Operator for actual costs incurred to operate and maintain the North Burbank Station per the terms of the Agreement. 3. Reimbursable Services. All services necessary to operate and maintain the station are permissible reimbursable expenses under this agreement. These services include, but are not limited to, the following activities: a. Utilities (including water, recycled water, electrical power, internet data, etc.) b. Security c. Landscaping d. Station Cleaning e. Graffiti Removal f. Repairs to walkways, platforms, canopies, lighting, landscaping, or other components of the station 4. Reimbursement. Lead operator agrees to submit an invoice no more than once per quarter, and no less than once per fiscal year, to Supporting Operator for reimbursement of all costs related to operations and maintenance of the North Burbank Station. Invoice shall be submitted in a manner agreed upon by City of Los Angeles and City of Burbank. Invoices and payments shall be sent to the parties listed in Section 11 of the Agreement. EXHIBIT A-13
5. Procurement. Services necessary to operate and maintain the North Burbank Station shall be procured using the procurement procedures and insurance requirements of Lead Operator. Optionally, services may be performed by City forces employed by Lead Operator. 6. Audit. Lead Operator agrees to maintain records supporting the invoices for a maximum period of three years from date of invoice. Lead Operator agrees to make such records available for inspection after receiving reasonable notice from Supporting Operator. 7. Change of Lead Operator. The role of Lead Operator may change upon mutual agreement between the City of Los Angeles and the City of Burbank. 8. All other provisions of the Agreement not inconsistent with these cost sharing procedures shall apply to matters arising under these Procedures. EXHIBIT A-14