FILE: OC-311
ORANGE COUNTY TRANSPORTATION AUTHORITY
LICENSE AGREEMENT
This LICENSE AGREEMENT ("Agreement") is made and entered into as of ________2023 (“Effective Date”), by and between the ORANGE COUNTY TRANSPORTATION AUTHORITY, a public entity ("OCTA"), and CITY OF SAN CLEMENTE ("Licensee"), upon and in consideration of the agreements, covenants, terms and conditions below:
PART I - BASIC LICENSE PROVISIONS
1. Description of License Property: The “License Property” shall be defined as the specific sections of a 2.3-mile-long portion of the OCTA railroad right-of-way in San Clemente, more particularly described in Exhibit “A”, attached hereto and made a part hereof.
2. Use of License Property: Subject to all the terms, conditions and limitations as set forth in Part II of this Agreement, Licensee is granted a non-exclusive license to continue to use, access, repair, and maintain the License Property for its existing beach trail allowing public access and use of the Facility as defined herein. Use of License Property and Facility, including the existing beach trail, is solely limited to pedestrian purposes only and for access by Licensee personnel to maintain and repair the License Property, except before entering the License Property any maintenance vehicles must first obtain prior written authorization from OCTA unless in the case of an emergency wherein emergency vehicles may access the License Property without prior written authorization from OCTA in response to an emergency.
3. Commencement Date: Notwithstanding the Effective Date set forth above, the Term of the license provided by this Agreement shall commence only upon the date all parties have signed this Agreement (“Commencement Date”).
4. Term: Annually beginning on the Commencement Date with automatic one-year renewals unless one party terminates this Agreement as provided herein
5. License Fees:
One-Time Fee: $2,500.00
6. Insurance Requirements: Insurance requirements are detailed in Section 16, Insurance.
7. OCTA's Address:
ORANGE COUNTY TRANSPORTATION AUTHORITY
550 S. Main Street
P. O. Box 14184
Orange, CA 92863-1584
Attn: Real Property Department
8. Licensee's Address:
ATTACHMENT 1
FILE: OC-311
City of San Clemente
Attn: Director of Public Works Department
910 Calle Negocio
San Clemente, CA 92673
9. Facility: Licensee’s Facility is defined as any project, Work (as defined below) and/or improvements to the License Property, which currently consists of an existing pedestrian trail and associated appurtenances, including, but not limited to: a pedestrian walkway, pedestrian at-grade crossings and below grade crossings, landscaping, fencing, retaining walls, rip-rap, pile and rope barriers, gates, handrails, signage, drainage facilities (including culverts, culvert extensions, inlets, drainage pipes, swales and ditches), paving steps, lighting and benches. The License Property and Facility, inclusive of the trail and associated appurtenances, is depicted on Exhibit “A” attached hereto and incorporated herein.
Any and all railroad facilities, structures, tracks, footings, embankments, abutments, or other railroad are not part of the Facility and expressly excluded from the definition of Facility as that term is used in this License.”
As a condition precedent to the use and occupancy of the License Property, if not already acquired for the Facility, Licensee shall acquire all necessary permits and authorizations as required from the California Public Utilities Commission (“CPUC”), Southern California Regional Rail Authority (“SCRRA”) BNSF Railway, and/or OCTA (collectively and individually, “Operators”) for (i) the use and occupancy of the License Property, (ii) any improvements made to the License Property, and/or (iii) any other Work (as defined below) conducted on the License Property (collectively, “ Approval of Operators”). Licensee acknowledges that the Facility may require Approval of Operators from one or all operators (i.e, CPUC, SCRRA, BNSF Railway, and/or OCTA) and Approval of Operators may be further required for any alterations, maintenance, or repairs thereto. If Licensee fails to obtain Approval of Operators for the Facility, OCTA may terminate this Agreement at any time upon written notice to Licensee and immediately bar any further use of the License Property by Licensee, including the public; however, upon termination any indemnification provision set forth in this Agreement shall survive such termination and Licensee shall forfeit any and all License Fees paid to the date of termination.
10. Right to Possession. Licensee’s right to possession and use of the License Property shall be effective and take place upon the Commencement Date.
11. The License Agreement. The BASIC LICENSE PROVISIONS (Part I) above and the GENERAL LICENSE PROVISIONS (Part II) set forth below are incorporated into the other and taken as a whole constitute this Agreement. If any conflict exists between Part I and Part II of this Agreement then Part I shall control.
PART II – GENERAL LICENSE PROVISIONS
1. LICENSE/TERM.
1.1 License. OCTA hereby grants to Licensee a non-exclusive license to use the real property owned by OCTA described on the attached Exhibit “A”, which is incorporated herein by reference, and described in Item 1 of the Basic License Provisions (the "License Property"). The License Property shall be used solely for the limited purpose of construction, installation, operation, alteration, maintenance, reconstruction and/or removal of the Facility described in Item 9 of the Basic License Provisions, and any FILE: OC-311
usual, necessary and related appurtenances thereto, for the purposes described in Item 2 of the Basic License Provisions, together with rights for access and entry onto the License Property as necessary or convenient for the use of the Facility, but all subject to CPUC Approval if so required.
1.2 Licensee Party. In connection with this Agreement, Licensee, its officers, directors, employees, agents, customers, visitors, invitees, licensees, and contractors (collectively, "Licensee Party"), subject to the provisions of this Agreement, may have reasonable rights of entry and access onto the License Property and use thereof. The License Property together with any adjoining real property (or any interest therein) of OCTA or personal property of OCTA located thereon, shall hereinafter collectively be defined and referred to as “OCTA Property.”
1.3 Term of Agreement. The term (“Term”) of this Agreement shall commence on the "Commencement Date" specified in Item 3 of the Basic License Provisions. This Agreement shall continue in full force and effect as provided in Item 4 of the Basic License Provisions until terminated by either party on one hundred eighty (180) days' prior written notice. Licensee, therefore, acknowledges and agrees that notwithstanding any reliance upon this Agreement, including the cost of the Facility or other expenditures incurred by Licensee based upon this Agreement, OCTA shall have the absolute right to terminate this Agreement prior to the date specified in Item 4 in its sole discretion by delivering one hundred eighty (180) days' prior written notice to Licensee.
1.4 Public Use. In addition to any and all other termination rights of OCTA described herein, Licensee hereby expressly recognizes and agrees that the Facility and License Property consist of OCTA Property that may be developed for public projects and programs which may be implemented by OCTA or other public agencies, such as, but not limited to: rail and bus transitways, bikeways, walkways, beautification projects, roadways, parking facilities, flood control and drainage facilities, and/or any other public or other governmental uses (collectively and individually, “Public Use”). As such, Licensee’s use of the License Property under this Agreement is a temporary, interim use as to which Licensee has no right to nor expectation of use for any particular length of time, may be terminated by OCTA by one hundred eighty (180) days written notice to Licensee as set forth in Section 1.3 above, and accordingly, as a condition to entering into this License, Licensee expressly acknowledges and agrees as follows:
(a) OCTA may terminate this License for any Public Use, to be determined in the sole and absolute discretion of OCTA’s Executive Director, or designee; (b) Licensee waives any objection to, opposition, or protest at any public hearing, permitting process, or other approval proceeding and shall not file suit to prevent or delay any Public Use when planned or implemented on the License Property, or any other OCTA Property;
(c) If OCTA’s Executive Director, or designee, at any time, or from time to time, determines in his or her sole and absolute discretion, that there is a need for the License Property or any adjoining property for a Public Use and such Public Use requires relocation, modification, or removal of the Facility, Licensee shall reconstruct, alter, modify, relocate or remove the Facility as directed by OCTA or any parties having operating rights over the License Property, at Licensee’s sole cost and expense, within thirty (30) days after written notice from OCTA or as agreed upon by the parties if thirty (30) days is not a reasonable amount of time to eliminate the conflict; and
(d) Licensee expressly assumes all risk of any future Public Use as determined by OCTA and in the event, OCTA terminates this License and requires Licensee to vacate the License Property for any Public Use, Licensee agrees and acknowledges that FILE: OC-311
Licensee shall not, as a result of such termination and vacation of the License Property, be entitled to receive any:
(i) relocation assistance, moving expenses, goodwill or other payments under the Relocation Assistance and Real Property Acquisition Policies Act of 1970, as amended, 42 U.S.C. §4601 et seq. and/or the California Relocation Assistance Law, as amended, California Government Code §7260 et seq.; or
(ii) compensation under any eminent domain or inverse condemnation law, including under California Eminent Domain Law (Government Code § 1230.010 et seq.).
1.5 Condition of License Property. Licensee acknowledges that it has inspected and accepts the License Property in its present condition as suitable for the use for which this license is granted.
Execution of this Agreement by Licensee shall be conclusive to establish that the License Property is in a condition which is satisfactory to Licensee as of the Commencement Date.
2. PAYMENTS. – Intentionally Omitted.
3. TAXES. Licensee shall be liable for and agrees to pay promptly and prior to delinquency, any tax or assessment, including but not limited to any possessory interest tax, levied by any governmental authority: (a) against the Facility and its operations, the License Property, and/or any personal property, fixtures or equipment of Licensee used in connection therewith, or (b) as a result of any Licensee Party’s’ use of the License Property, or the Facility.
4. CONSTRUCTION OF FACILITY AND RESTORATION.
4.1 Work on License Property. All construction work performed or caused to be performed by Licensee on the Facility or the License Property shall be performed in accordance with and any and all applicable laws, rules and regulations of Operators in place at the time or as may be amended and performed in a manner which (i) meets or exceeds the then applicable standards of the industry for such construction work, and (ii) is satisfactory to Operators . Prior to commencement of any construction, maintenance, reconstruction, installation, restoration, alteration, repair, replacement or removal (other than normal maintenance) (hereinafter, "Work") on the License Property, Licensee shall submit work plans to OCTA for review and approval and if required, to all other Operators if so required for use and occupancy of the Facility. Any such Work must be carried out pursuant to Work plans approved in writing by OCTA and/or any other Operators wherein such approval is at the sole discretion of OCTA and/or any other Operators. In addition, Licensee shall provide OCTA and all holders of underground utility facilities located within the License Property with at least ten (10) days' written notice prior to commencement of any Work on the License Property or the Facility, except in cases of emergency, in which event Licensee shall notify OCTA's representative personally or by phone prior to commencing any Work.
5. CONTRACTORS - APPROVAL AND INSURANCE. Any contractors of Licensee performing Work on the Facility or the License Property shall first be approved in writing by OCTA. With respect to such Work, Licensee shall, at its sole cost and expense, obtain and maintain in full force and effect, throughout the term of such Work, insurance, as required by OCTA, in the amounts and coverages specified on, and issued by insurance companies as specified in Section 16, Insurance and Exhibit “B”, of this Agreement.
Additionally, Licensee shall cause any and all of its contractors and subcontractors which may (a) be involved with such Work, or (b) may, for any reason, need to enter onto the License Property, to obtain and maintain in full force and effect throughout the term of such Work (as applicable), insurance, as required by OCTA, in the amounts and coverages specified on, and issued by insurance companies as described FILE: OC-311
in Section 16, Insurance. OCTA reserves the right, at any time and throughout this Agreement, to review and change the amount and type of insurance coverage it requires in connection with this Agreement provided OCTA gives Licensee sixty (60) days’ prior written notice of such change.
6. REIMBURSEMENT. Licensee agrees to reimburse OCTA for all reasonable costs and expenses incurred by OCTA in connection with Work on or maintenance of the License Property or the Facility, including, but not limited to, (a) costs incurred by OCTA in furnishing any materials or performing any labor, in connection with any Work on the License Property; (b) reviewing Licensee's Work plans and/or inspecting any Work; (c) installing or removing, if necessary, protection beneath or along OCTA's tracks; (d) furnishing of watchmen, flagmen and inspectors as OCTA deems necessary; and (e) such other items or acts as OCTA in its sole discretion deems necessary to monitor or aid in compliance with this Agreement.
7. LIENS. Licensee will fully and promptly pay for all materials joined or affixed to the Facility or the License Property, and fully and promptly pay all persons who perform labor upon the Facility or the License Property. Licensee shall not suffer or permit to be filed or enforced against the License Property or the Facility, or any part thereof, any mechanics', materialmen's, contractors', or subcontractors' liens or stop notices arising from, or any claim for damage growing out of, any testing, investigation, maintenance or Work, or out of any other claim or demand of any kind. Licensee shall pay or cause to be paid all such liens, claims or demands, including sums due with respect to stop notices, together with attorney's fees incurred by OCTA with respect thereto, within ten (10) business days after notice thereof and shall indemnify, hold harmless, and defend OCTA from all obligations and claims made against OCTA for the above-described work, including attorney's fees. Licensee shall immediately furnish evidence of payment of any Work performed on the License Property upon request of OCTA. Licensee may contest any lien, claim or demand by furnishing a statutory lien bond or equivalent with respect to stop notices to OCTA in compliance with applicable California law. If Licensee does not discharge any mechanic's liens or stop notice for work performed for Licensee, OCTA shall have the right to discharge the same (including by paying the claimant), and Licensee shall reimburse OCTA for the cost of such discharge within ten (10) business days after billing, including all reasonable attorneys’ fees incurred by OCTA related thereto.
OCTA reserves the right at any time to post and maintain on the OCTA Property and on the License Property such notices as may be necessary to protect OCTA against liability for all such liens and claims.
The provisions of this Section 7 shall survive the termination of this Agreement.
8. MAINTENANCE AND REPAIR. During the Term of this Agreement, Licensee, at Licensee's sole expense, shall operate, maintain and repair the License Property and the Facility in a condition satisfactory to OCTA and all other Operators , including in accordance with the additional SCRRA mandated provisions set forth in Exhibit “C” attached hereto and incorporated herein. Licensee shall be responsible for all clean up and maintenance of the License Property resulting from its use. Licensee shall be responsible for any citations issued by any agency having jurisdiction because of Licensee's failure to comply with local codes.
If any portion of OCTA Property, including improvements, fixtures suffers damage by reason of the access to or use thereof by Licensee or any Licensee Party, including but not limited to damage arising from any test or investigations conducted upon the License Property, Licensee shall, at its own cost and expense, immediately repair all such damage and restore the OCTA Property to as good a condition as before such cause of damage occurred. Licensee’s obligation for repair of damage shall include, without limitation, regrading and resurfacing of any holes, ditches, cracks, indentations, mounds or other inclines created by any excavation by Licensee or Licensee Party.
9. PROTECTIVE SAFETY MEASURES. If required by OCTA or any other Operators upon their sole discretion i, Licensee, at its sole cost and expense, shall install any reasonable barrier fencing and/or other safety measures to prohibit and protect users of the Facility (i.e., the public) from the railroad tracks and other railroad facilities. All fencing and/or other safety measures shall be done in accordance with the provisions of Sections 4 and 5 and subject to the maintenance and repair provisions of Section 8 of this Agreement.
FILE: OC-311
10. LIMITED USE. The License Property and the Facility shall be used solely for the purposes specified in Item 2 of the Basic License Provisions and for such lawful purposes as may be directly incidental and necessary thereto, but such use shall be interpreted in the most restrictive manner. No change shall be made by Licensee in the use of the License Property or the Facility without OCTA's prior written approval, which may be withheld at its sole discretion.
11. ABANDONMENT. If at any time Licensee abandons the use of the Facility or the License Property, or any part thereof, or fails to use or occupy the License Property for a continuous period of ninety (90) days for the purposes contemplated herein, then this Agreement shall automatically terminate to the extent of the portion so abandoned or discontinued, and in addition to any other rights or remedies, OCTA shall immediately be entitled to exclusive possession and ownership of that portion of the License Property and Facility so abandoned or discontinued, without the encumbrance of this Agreement. OCTA, at its option, may remove any materials, improvements, or any portion of the Facility remaining on the abandoned property, and store and/or destroy the same, at Licensee's sole expense. Licensee shall provide OCTA a written notification of its intent to cease use of the License Property and/or abandon the License Property, or any portion thereof.
12. EVENT OF DEFAULT. If Licensee breaches, or fails to keep, observe or perform any agreement, covenant, term, or condition of this Agreement (collectively, “Event of Default”) sole, then, in addition to any other available rights and remedies, OCTA, at its option, may:
(a) perform any necessary or appropriate corrective work caused by or relating to the Event of Default at Licensee's expense, which Licensee agrees to immediately pay to OCTA such expense, including reasonable attorney’s fees, upon demand, or
(b) with or without written notice or demand, immediately terminate this Agreement and at any time thereafter, recover possession of the License Property or any part thereof, and expel and remove Licensee or any other person occupying the License Property, by any lawful means, and repossess and enjoy the License Property and the Facility, without prejudice to any of the rights and remedies that OCTA may have under this Agreement, at law or in equity by reason of Licensee's Event of Default or of such termination.
13. SURRENDER. Upon termination of this Agreement, unless otherwise requested in writing by OCTA to leave all, or any portion of, the Facility in place, prior to the date of termination, Licensee, at its own cost and expense, shall immediately remove the Facility and restore the License Property to as nearly as possible the same state and condition as existed prior to the construction, reconstruction or installation of the Facility. If Licensee fails to comply with the requirements of the preceding sentence, OCTA may at its option (a) perform the same at Licensee's sole cost and expense, which costs Licensee agrees to pay to OCTA immediately on demand, or (b) assume title and ownership of the Facility. No termination of this Agreement shall release Licensee from any liability or obligation hereunder, whether of indemnity or otherwise, resulting from any acts, omissions, or events happening prior to the date the Facility is removed and the License Property is restored.
14. INDEMNIFICATION. Licensee agrees to indemnify, defend and hold OCTA and its employees, officers, directors, agents and representatives and its and their respective successors and assigns (collectively, the “Indemnified Parties”) harmless from and against any and all claims, damages, losses, liabilities, costs and expenses, including attorney’s fees (collectively, the “Claims”) for injury or damage to real, personal, tangible or intangible property, including loss of use of any OCTA property, and all Claims for bodily injury, sickness, disease, or death of any person, arising from or in any way related to (i) any act, omission or entry upon the License Property or other activity under this Agreement by Licensee or a Licensee Party (including but not limited to any Claim by any insurance company which has paid a claim FILE: OC-311
and is subrogated to the rights of the claimant), or (ii) any breach by Licensee or a Licensee Party of its obligations under this Agreement; provided, however, that no indemnification shall be provided hereunder to the extent any Claim has been caused by the gross negligence or willful misconduct of Indemnified Parties.
This Section 14 shall survive termination of this Agreement; and is in addition to any other rights or remedies which Indemnified Parties may have under the law or under this Agreement. Upon request of OCTA, Licensee shall provide insurance coverage for possible claims or losses covered by the indemnification and defense provisions of this Agreement.
Claims against the Indemnified Parties by Licensee or a Licensee Party shall not limit Licensee's indemnification obligations hereunder in any way, whether or not such claims against Indemnified Parties may result in any limitation on the amount or type of damages, compensation, or benefits payable by or for Licensee or a Licensee Party under workers' compensation acts, disability benefit acts or other employee benefit acts or insurance.
15. ASSUMPTION OF RISK AND WAIVER. To the maximum extent allowed by law, Licensee assumes any and all risk of loss, damage or injury of any kind to any person or property, including, without limitation, the Facility, the License Property and any other property of, or under the control or custody of, Licensee, which is on or near the License Property. Licensee's assumption of risk shall include, without limitation, loss or damage caused by defects in any structure or improvement on OCTA Property, accident, fire, or other casualty on OCTA Property, or electrical discharge, noise or vibration resulting from OCTA's transit operations on or near OCTA Property. The term "OCTA" as used in this Section 15 shall include:
(a) any transit or rail-related company validly operating upon or over OCTA's tracks or other property, and (b) any other persons or companies employed, retained or engaged by OCTA. As a material part of the consideration for this Agreement, Licensee, on behalf of itself and any Licensee Party, hereby waives all claims and demands against OCTA for any such loss, damage or injury of Licensee and/or any Licensee Party. Licensee waives the benefit of California Civil Code Section 1542, which provides as follows:
"A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party."
Licensee accepts the risk that the facts or the law may later turn out to be different than Licensee understands them to be at this time and acknowledges that this assumption of risk and waiver will not be affected by such different state of facts or law. The provisions of this Section 15 shall survive the termination of this Agreement.
16. INSURANCE.
Licensee, at its sole cost and expense, shall obtain and maintain in full force and effect during the Term of this Agreement insurance as required by OCTA naming OCTA as additional insured in the amounts and coverages specified and issued by insurance companies as described on Exhibit "B". OCTA reserves the right, throughout the Term of this Agreement, to review and change the amount and type of insurance coverage it requires in connection with this Agreement or the Work to be performed on the License Property. Prior to (a) entering the License Property or (b) performing any Work or maintenance on the License Property, Licensee shall furnish OCTA with insurance endorsements and certificates, FILE: OC-311
evidencing the existence, amounts and coverages of the insurance required to be maintained by Licensee under this Agreement.
17. TESTS AND INSPECTION. OCTA shall have the right at any time to inspect the License Property and the Facility to monitor compliance with the terms of this Agreement. OCTA shall be permitted to conduct any tests or assessments, including but not limited to environmental assessments, of, on or about the License Property, as it determines to be necessary in its sole judgment or useful to evaluate the condition of the License Property. Licensee shall cooperate with OCTA and its agents in any tests or inspections deemed necessary by OCTA. Licensee shall pay or reimburse OCTA and appropriate regulatory agencies, as appropriate, for all reasonable costs and expenses incurred due to the tests, inspections or any necessary corrective work and inspections thereafter.
18. HAZARDOUS/TOXIC MATERIALS USE AND INDEMNITY. Licensee shall operate and maintain the License Property in compliance with all applicable federal, state, and local environmental, health and/or safety-related laws, regulations, standards, decisions of the courts, permits or permit conditions, currently existing or as amended or adopted in the future which are or become applicable to Licensee or the License Property ("Environmental Laws"). Licensee shall not cause or permit, or allow any Licensee Party to cause or permit, any Hazardous Materials to be brought upon, stored, used, generated, treated or disposed of on or about the brought upon, stored, used, generated, treated or disposed of on the License Property or OCTA Property. As used herein, "Hazardous Materials" means any chemical, substance or material which is now or becomes in the future listed, defined or regulated in any manner by any Environmental Laws based upon, directly or indirectly, its properties or effects.
Licensee shall indemnify, defend (by counsel acceptable to OCTA) and hold harmless Indemnified Parties (as defined in Section 14) from and against all loss, liability, claim, damage, cost or expense (including without limitation, any fines, penalties, judgments, litigation expenses, attorneys' fees, and consulting, engineering, and construction fees and expenses) incurred by Indemnified Parties as a result of (a) Licensee's or a Licensee Party’s breach of any prohibition or provision of this Section 18 or (b) any release of Hazardous Materials upon or from the Facility or OCTA Property or contamination of OCTA Property (i) which occurs due to the use and occupancy of the Facility or the License Property by Licensee or a Licensee Party, or (ii) which is made worse due to the act or failure to act of Licensee or Licensee Party.
The foregoing indemnity shall be effective regardless of any negligence (whether active, passive, derivative, joint, concurring or comparative) on the part of Indemnified Parties, unless caused solely by the gross negligence or willful misconduct of Indemnified Parties; shall survive termination of this Agreement; and is in addition to any other rights or remedies which Indemnified Parties may have under the law or under this Agreement.
In addition, in the event of any release on or contamination of OCTA Property and/or any adjacent property, whether or not owned by OCTA, Licensee, at its sole expense, shall promptly take all actions necessary to clean up all such affected property and to return the affected property to the condition existing prior to such release or contamination, to the satisfaction of OCTA and any governmental authorities having jurisdiction thereover.
Upon the termination of this Agreement at any time and for any reason, Licensee shall, prior to the effective date of such termination, clean up and remove all Hazardous Materials in, on, under and/or about OCTA Property, which Licensee or any Licensee Party caused or permitted to be brought upon OCTA Property, in accordance with the requirements of all Environmental Laws and to the satisfaction of OCTA and any governmental authorities having jurisdiction thereover.
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19. UNDERGROUND STORAGE TANKS. NEITHER LICENSEE NOR ANY LICENSEE PARTY SHALL INSTALL OR USE ANY UNDERGROUND STORAGE TANKS ON THE LICENSE PROPERTY.
20. SUBORDINATE RIGHTS. This Agreement is subject and subordinate to all prior and continuing rights and/or obligations of OCTA, and its successors and assigns, to use OCTA Property, inclusive of the License Property, in the exercise of its powers and in the performance of its duties, or for any other purpose including but not limited to those as a public transportation body. Accordingly, there is reserved and retained unto OCTA, its successors, assigns and permittees, the right to construct, reconstruct, maintain and use existing and future rail tracks, facilities and appurtenances and existing and future transportation, communication, pipeline and other facilities and appurtenances in, upon, over, under, across and along OCTA Property, and to otherwise use OCTA Property, and in connection therewith the right of OCTA, its successors and assigns, to grant and convey to others, rights to and interests in OCTA Property, including on or in the vicinity of the License Property and the Facility. This Agreement is subject to all licenses, leases, easements, restrictions, conditions, covenants, encumbrances, liens, claims and other matters of title, recorded and unrecorded ("Title Exceptions") which may affect OCTA Property now or hereafter, and no provision of this Agreement shall be construed as a covenant or warranty against the existence of any such present or future Title Exceptions, whether or not arising out of the actions of OCTA, its successors or assigns. OCTA makes no representations or warranties of any kind with regard to title to the License Property and Licensee accepts the License Property “AS IS WITH ALL FAULTS”.
21. COMPLIANCE WITH LAWS. Licensee and any other Licensee Party shall comply with all applicable federal, state and local laws, regulations, rules and orders in its work on, or maintenance, inspection, testing or use of, the Facility and the License Property. OCTA may enter the License Property to inspect the Facility at any time, upon provision of reasonable notice of inspection to Licensee. Licensee shall obtain all required permits or licenses required by any governmental authority for its use of the License Property and the Facility, at its sole cost and expense.
22. CONDEMNATION. In the event all or any portion of the License Property shall be taken or condemned for public use (including conveyance by deed in lieu of or in settlement of condemnation proceedings), Licensee shall only receive compensation (if any) from the condemning entity for the taking and damage to the Facility and any other compensation or damages arising out of such taking or condemnation, whether temporary or permanent, shall be awarded to OCTA and are hereby assigned by Licensee to OCTA. Licensee shall have no rights under California law or federal law to the receipt of any damages arising out of any use or proposed use of the License Property by OCTA or its respective agents, officers, contractors or employees and in entering into this Agreement expressly waives any such rights.
23. MARKERS. At the sole discretion of OCTA, Licensee shall place project markers in form and size satisfactory to OCTA on or about the License Property, identifying the Facility and its owners, which markers shall be constantly maintained by and at the expense of Licensee at such locations as OCTA shall designate. Such markers shall be relocated or removed upon request of OCTA without expense to OCTA.
Licensee hereby acknowledges that the absence of markers in or about the License Property and OCTA Property does not constitute a warranty or representation by OCTA of the absence of subsurface installations.
24. GENERAL PROVISIONS.
24.1 Notices. All notices and demands, which either party is required to or desires to give to the other under this Agreement, shall be made in writing and sent by certified mail, return receipt requested, postage prepaid, and addressed to such party at its address set forth in the Basic License Provisions.
Either party may change its address for the receipt of notice by giving written notice thereof to the other party in the manner herein provided. Notices shall be effective on the date delivered to custody of U.S.
Postal Service.
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24.2 Non-Exclusive License. The license granted hereunder is not exclusive and OCTA specifically reserves the right to grant other licenses within the License Property so long as such other use does not reasonably interfere with use by of the License Property by Licensee as provided for in this Agreement.
24.3 Governing Law and Venue. This Agreement shall be governed by the laws of the State of California and venue for any action or proceeding shall be within Orange County, California and if a civil action, jurisdiction shall be with the Orange County Superior Courts.
24.4 Severability. If any term, covenant, condition or provision of this Agreement, or the application thereof to any person or circumstance, shall to any extent be held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remainder of the terms, covenants, conditions, or provisions of this Agreement, or the application thereof to any person or circumstance, shall remain in full force and effect and shall in no way be affected, impaired or invalidated thereby.
24.5 Interest on Past-Due Obligations. Except as expressly herein provided, any amount due to OCTA not paid when due shall bear interest, from the date due, at the maximum rate then allowable by law. Such interest will be due OCTA as it accrues. Payment of such interest shall not excuse or cure any default by Licensee under this Agreement. Interest shall not be payable on late charges incurred by Licensee.
24.6 Survival of Obligations. All obligations of Licensee hereunder not fully performed as of the expiration or earlier termination of any Term of this Agreement shall survive the expiration or earlier termination of this Agreement, including without limitation, all indemnification provisions and obligations, payment obligations with respect to License Fees, and all obligations concerning the condition of the License Property and the Facility.
24.7 Waiver of Covenants or Conditions. The waiver by one party of the performance of any covenant or condition under this Agreement shall not invalidate this Agreement nor shall it be considered a waiver by it of any other covenant or condition under this Agreement.
24.8 Amendment. This Agreement may be amended at any time only by the written agreement of OCTA and Licensee. All amendments, changes, revisions, and discharges of this Agreement in whole or in part, and from time to time, shall be binding upon the parties, so long as the same shall be in writing and executed by the parties hereto.
24.9 Assignment. This Agreement and the license granted hereunder are personal to the Licensee. Licensee shall not assign or transfer (whether voluntarily or involuntarily) this Agreement in whole or in part or permit any other person or entity to use the rights or privileges granted hereunder, without the prior written consent of OCTA, which may be withheld in OCTA's sole and absolute discretion.
Any attempted act in violation of the foregoing sentence shall be void and without effect and grant OCTA the right to immediately terminate this Agreement.
24.10 Attorney's Fees. In any judicial or arbitration proceeding involving performance under this Agreement, or default or breach thereof, the prevailing party shall be entitled to its reasonable attorney's fees and costs.
24.11 Nondiscrimination. Licensee certifies and agrees that all persons employed and any contractors retained, by either Licensee or other Licensee Party with respect to the License Property, are and shall be treated equally without regard to or because of race, religion, ancestry, national origin, disability or sex, and in compliance with all federal and state laws prohibiting discrimination in employment, FILE: OC-311
including but not limited to the Civil Rights Act of 1964; the Unruh Civil Rights Act; the Cartwright Act; and the California Fair Employment Practices Act.
24.12 Further Acts. At OCTA's sole discretion, but at the sole expense of Licensee and without a right of reimbursement, Licensee agrees to perform any further acts and to execute and deliver any documents that may be reasonably necessary to carry out the provisions of this Agreement, including the relocation of the Facility and the license granted hereunder.
24.13 Acknowledgement of No Right to Claim Relocation Benefits Against OCTA. Licensee hereby acknowledges and agrees that if OCTA asks Licensee to vacate the License Property, then Licensee shall not be entitled to any relocation benefits under this Agreement or by virtue of state or federal law, including, but limited to, no relocation assistance, moving expenses, loss of goodwill, or other payments under the Relocation Assistance and Real Property Acquisition Policies Act of 1970, as amended, 42 U.S.C. §4601 et seq. and/or the California Relocation Assistance Law, as amended, California Government Code §7260 et seq. Further, Licensee agrees it is not entitled to loss of good will or moving expensed from OCTA, SCRRA, Amtrak or BNSF.
24.14 Time of Essence. Time is of the essence in the performance of this Agreement.
24.15 No Recording. Licensee acknowledges and agrees this Agreement and the license granted herein does not constitute on interest in real property. Licensee shall not record or permit this Agreement to be recorded in the official records of the county where the License Property is located, which prohibition shall include any memorandum of this Agreement or any other document giving notice of the existence of this Agreement, or the license granted hereunder.
24.16 Revocable License. Licensee agrees that notwithstanding the improvements made by Licensee to the License Property, including the Facility, or other sums expended by Licensee in furtherance of this Agreement, the license granted hereunder is revocable by OCTA in accordance with the terms of this Agreement and Licensee and any other Licensee Party assume the risk of such financial expenditures, which may not be recovered against OCTA.
24.17 Entire Agreement. This Agreement and Exhibits “A” and “B” hereto constitute the entire agreement between the parties with respect to the subject matter hereof and supersede all prior verbal or written agreements and understandings between the parties with respect to the items set forth herein.
24.18 Captions. The captions included in this Agreement are for convenience only and shall not be used to define, limit, or otherwise describe the scope or intent of this Agreement or any provisions hereof, or in any way affect the interpretation of this Agreement.
24.19 Additional Provisions. Those additional provisions set forth in Exhibit “C”, if any, are hereby incorporated into this Agreement by this reference as if fully set forth herein.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their duly authorized representatives as of the Effective Date first written above.
FILE: OC-311
ORANGE COUNTY TRANSPORTATION AUTHORITY
By:
James G. Beil, P.E, Executive Director,
Capital Programs
Date: __________________________________
Approved As To Form:
By:
James M. Donich
General Counsel
CITY OF SAN CLEMENTE
By:
Date: _____________________________________
Approved As To Form:
By:
Date: _____________________________________
FILE: OC-311
EXHIBIT “A”
(To be Attached)
FILE: OC-311
EXHIBIT “B”
INSURANCE REQUIREMENTS FOR LICENSEE
LICENSEE shall procure and maintain insurance coverage in full force and effect during the entire term of the Agreement. Coverage shall be full coverage and not subject to self-insurance provisions. Any proposed self-insurance would need to be approved by OCTA Risk Management. Insurance is to be placed with insurers with a current A.M. Best’s rating of no less than A-VII, unless otherwise approved by OCTA. LICENSEE shall provide the following insurance coverage:
1. Commercial General Liability, to include Contractual Liability, Personal Injury Liability, and Property Damage with a minimum limit of $5,000,000 per occurrence, $10,000,000 general aggregate.
Exclusion for railroads, explosion, collapse and underground hazard shall be removed.
2. Commercial Automobile Liability Insurance to include owned, hired and non-owned autos with a combined single limit of $2,000,000 for each accident.
3. Workers’ Compensation with limits as required by the State of California including a Waiver of Subrogation in favor of AUTHORITY, its officers, directors and employees.
4. Employers’ Liability with minimum limits of $1,000,000 per accident, $1,000,000 policy limitdisease, and $1,000,000 policy limit employee-disease; and
5. Pollution Liability with a minimum limit of $1,000,000 per occurrence, $2,000,000 general aggregate.
6. In the event work is required within the Licensed Area, Railroad Protective Liability insurance will also be purchased at the following levels: $2,000,000 per occurrence, combined single limits, for coverage and for losses arising out of injury to or death of all persons, and for physical loss or damage to a destruction of Property, including the loss of use thereof and a $6,000,000. annual aggregate.
SCRRA, Amtrak and BNSF, and other freight and passenger rail service providers as designated by OCTA and their officers, Directors, Employees and agents must be designated as an additional insured on the Licensee’s Comprehensive General and Automobile Liability Insurance Policies Each insurance policy required by this clause shall be endorsed to state that coverage shall not be suspended, voided, canceled or reduced in coverage or in limits, except only after thirty (30) days prior written notice has been given to OCTA. In the event OCTA learns that Licensee’s insurance coverage is being terminated and Licensee fails to provide adequate assurances that continuous coverage is being provided, OCTA, and at its sole discretion, may obtain such coverage at Licensee’s expense.
Proof of such coverage, in the form of a certificate of insurance and an insurance policy additional insured endorsement for commercial general liability, commercial automobile, and pollution liability, designating the OCTA, its officers, directors and employees as additional insureds as required by the License Agreement. LICENSEE shall include on the face of the certificate of insurance the License Agreement name and Number OC-311.
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Proof of insurance coverage must be received by OCTA within ten (10) calendar days from the effective date of the Agreement. Such insurance shall be primary and non-contributive to any insurance or selfinsurance maintained by OCTA. Furthermore, OCTA reserves the right to request certified copies or review all related insurance policies, in response to a related loss. .
FILE: OC-311
EXHIBIT “C”
This Agreement is subject to the following additional terms and conditions:
1. Southern California Regional Rail Authority (SCRRA), OCTA, and its representatives (including the California Public Utilities Commission (CPUC), and the Federal Railroad Administration (FRA)) have the absolute right and authority to perform random audits and inspections of the worksite, to verify the contractor’s employees are complying with SCRRA, OCTA, State, and Federal Requirements. Contractor’s employees shall participate in the audit and inspection. SCRRA, OCTA, and its representatives, including the CPUC and the FRA, have the absolute right and authority to remove employees and/or shutdown the worksite if any safety violations and/or rule violations are observed. If employees are removed and/or the work site is shut down, contractor shall have no recourse to seek compensation for delays and cost overruns.
2. Contractor agrees to reimburse SCRRA, OCTA, and its representatives the actual cost and expense incurred by SCRRA, OCTA, and its representatives for all services and work performed in connection with the request, including an allocated overhead representing SCRRA’s, OCTA’s, and their representative’s costs for administration and management. A “Cost Estimate” will be provided that is contingent on the complexity of the project and the (estimated) direct costs and expenses incurred by SCRRA, OCTA, and their representatives.
3. The Licensee agrees to execute and deliver to SCRRA, prior to commencing any work within the rail right-of-way, SCRRA Temporary Right-of-Entry agreement (Form No. 6) and deliver and secure approval of the insurance required by the two exhibits attached to SCRRA Form No. 6. If the Licensee retains a contractor to perform any of work within the rail right-of-way, then the Licensee shall incorporate in its contract documents SCRRA Form No. 6 and Rules and Requirements for Construction on Railway Property (SCRRA Form No. 37). Mr. Eric Reese with SCRRA's Right-of-Way Encroachments Office can be reached at (909) 667-8108. These forms can be accessed through SCRRA's website www.metrolinktrains.com,("About Us", "Engineering and Construction", and the "Right of Way Encroachment Page" link).
4. Licensee's contractor, at its sole cost and expense, shall obtain and maintain, in full force and effect, insurance as required by SCRRA during the entire construction period. The Contractor shall furnish copies of the insurance certificates to all affected operating railroads.
5. If the personnel working on this project do not have current SCRRA Safety Training Certification, contact Mr. Trevor Williams with JACOBS to schedule your I- (up to 20 people) SCRRA Safety Training at (714) 659-1141 or via e-mail at, [email protected] Allow 24 to 72 hours from the request for safety training to arrange the training No work may commence on the railroad right of way until this training has been completed. The contractor will need a valid SCRRA project number, located in the upper righthand corner of the executed SCRRA Right-of-Entry Permit.
6. Flagging services are limited due to projects SCRRA has going on within the SCRRA Right-ofWay., Jacobs Engineering requests the contractor to arrange flagging services a minimum of fifteen working days prior to beginning work. Although every effort is made to accommodate the contractor's schedule, prior notification does not guarantee the availability of protective services for the proposed date of work. Contractor shall contact Mr. Justin Duke. with Jacobs Engineering at 1-714-559-0968 to schedule (RWIC) Flagging Services. The contractor will need a valid SCRRA project number, located in the upper right-hand corner of the Rightof-Entry Permit.
FILE: OC-311
7. Licensee or licensee's contractor shall be responsible for the location and protection of any and all surface, sub-surface, and overhead lines and structures.
8. Any and all excavation will adhere to SCRRA's Excavation Support Guidelines." SCRRA's Excavation Support Guidelines can be found on our website at:
https://www.metrolinktrains.com/globalassets/about/engineering/scrra excavation support guidelines.pdf.
9. If Traffic Control will be utilized. The temporary traffic control plans shall be prepared, signed and sealed by a California Licensed Civil or Traffic Engineer. Temporary traffic control will comply with the current editions of the California Manual of Uniform traffic Control Devices (CA MUTCD), Work Area Traffic Control Handbook (WATCH), Temporary Traffic Control Work At or Near Grade Crossing Guidelines prepared by SCRRA and SCRRA's Engineering Standard ES430I.
10. For any pipeline that is bored or jacked under the track, the Contractor must guarantee the work against settlement for two years after the completion of the work and must furnish a performance bond against failure or settlement of the soil around the jacked pipe or casing in the amount of $180,000.00 as per SCRRA requirements shown in Form 37." PLEASE NOTE: More information on SCRRA's Performance Bond Requirements may be found in SECTION 5.11, Page 32 of SCRRA's Form 37.
11. The boring, tunneling or jacking operation shall be progressed on a 24-hour basis without stoppage when the casing is 20 feet from the centerline of the nearest track.
12. The abandoned pipe and casing will need to be filled with slurry and the end will need to be sealed.
13. Pipeline installation will adhere to SCRRA Engineering Standard ES 500I.
14. Boring and jacking of casings and other conduits must conform to the requirements of SCRRA Engineering Standard Plans ES 5001.
15. The Licensee agrees to comply and to ensure that its contractor complies with instructions of SCRRA's Roadway Worker-In-Charge (RWIC) and representatives, in relation to the proper manner of protection of the tracks and the traffic moving thereon, pole lines, signals and other property of SCRRA or its member agency tenants or licensees at or in the vicinity of the work, and shall perform the work at such times as not to endanger or interfere with safe and timely operation of SCRRA's track and other facilities.
Contractor’s employees must print out and discuss the SCRRA Risk Analysis Form during the job safety briefing with the RWIC. Each employee must have a signed and completed form on their person at all times and must present the form upon request for inspection and verification.
16. The Licensee shall obtain permission from any fiber optic, gas or oil lines that may be located along or across the right-of-way.
17. If there will be ANY excavation within the RR ROW, the contractor shall call SCRRA's signal department (909) 592-1346 a minimum of 15 days in advance to mark signal and communication cables and conduits. In case of signal emergencies or grade crossing problems, the contractor shall call SCRRA 's 24-hour signal emergency number: 1-888-446- 9721. Once Cable Markings have been completed, SCRRA’s ROW Coordinator will email the signed Cable Marking Request Form. This form must be available on-site and must be presented upon request for inspection and verification.
18. No equipment, trucks or materials are allowed to be stored on the railroad right-of-way.
FILE: OC-311
19. All Equipment, Work Vehicles, and Materials must be a minimum of 25 feet away from the centerline of the nearest track and must not block the visibility of any railroad crossings, railroad signs, railroad signs, or any railroad equipment.
20. All Equipment, Work Vehicles, and Materials must be properly secured to prevent any unauthorized movement.
21. Contractor’s employees must always comply with SCRRA’s Roadway Worker Protection (RWP) Manual, including not using any cell phones or any electronic devices with internet capability within 25 feet of the nearest running rail.
22. Before excavating, the Contractor must determine whether any underground pipelines, electric wires, or cables, including fiber optic cable systems, are present and located within the Project work area by calling the Southern California Underground Service Alert at 811.
23. No work may commence, and no direct services may be scheduled until SCRRA (Metrolink) issues an executed Right-of-Entry (ROE), Agreement, Form 6 in support of this project.
24. Once the Executed License Agreement and Executed Right-of-Entry (ROE) Agreement have been issued, contractor’s employees are not allowed to deviate from the approved project scope without the express written consent of the SCRRA and OCTA.
25. If SCRRA or OCTA shall deem it necessary in the future, to build additional track, tracks or other facilities in connection with the operation of its railroad, at the request of SCRRA, the Licensee shall modify, at its own expense, the proposed utility and/or roadway to conform to the rail line.
Please reference the above-noted project number on future correspondence pertaining to this project. If you have any questions, I can be reached at (909) 667-8108 by phone, and [email protected] by e-mail.