HomeMy WebLinkAboutA-2002-147
.
.
LICENSE AGREEMENT
.
ORANGE COUNTY TRANSPORTATION AUTHORITY
A-2002-147
.
.
FILE: OC-196
LICENSE AGREEMENT
This LICENSE AGREEMENT ("Agreement") is made and entered into as of June
20,2002 by and between the ORANGE COUNTY TRANSPORTATION AUTHORITY, a
public entity ("OCTA"), and CITY OF SANTA ANA ("Licensee"), upon and in
consideration of the agreements, covenants, terms and conditions below:
PART I. - BASIC LICENSE PROVISIONS
1.
Description of License Property:
A.
A portion of OCT A Orange Subdivision railroad right of way from Mile Post
175.14 to Mile Post 175.34, in Santa Ana, California, as shown in Exhibit
"A", attached.
B.
Approximate area:
20,000 +/- square feet
C.
Legal Description - Licensee shall provide a Legal Description of the
License Property to OCT A within 30 days after the License
Commencement Date. After said Legal Description is approved by OCTA,
said Legal Description shall be attached to License as Exhibit "A-1 ".
Approximate area:
20,000 +/- square feet.
2
Use of License Property:
For art panels mounted on a block wall only, and no other uses.
3.
Commencement Date:
July 1, 2002.
4.
Term:
Month-to-Month
5.
Facility:
Upon design approval from Southern California Regional Rail Authority (SCRRA) -
a block wall 1 000' in length, 8" in width and 10' in height with mounted art panels.
6.
License Fees:
A.
Base License Fee:
$2,500 payable every five (5) years in advance.
B
Additional License Fee:
One time fee:
$500
Page 1 of 15
.
.
FILE: OC-196
7.
Insurance Amount:
See Exhibit "B"
C.
Base License Fee Adjustment Dates:
Every five (5) years based on CPI.
8.
OCTA's Address:
ORANGE COUNTY TRANSPORTATION AUTHORITY
550 S. Main Street
P. O. Box 14184
Orange, CA 92863-1584
9.
Licensee's Address:
CITY OF SANTA
P.O. Box 1988, M-93
Santa Ana, CA 92702
The foregoing Basic License Provisions and the General License Provisions set forth
in attached Part II are incorporated into and made part of this Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by
their duly authorized representatives as of the date first written above.
ION AUTHORITY
evelopment
APPROVED AS TO FORM:
By:
nnard R. Smart, Jr
General Counsel
Page 2 of 15
.
.
FILE: OC-196
CITY OF SANTA ANA
By:
City Manager
ATTEST L -i
BY~"~ '",.,; ~ /' ~
Clerk of the Council / S
APPROVED AS TO FORM:
BY:~~~;t~:P7
:PPROVEAAS TO COfZ
J 'S G. ROSS
xecutive Director Public Works
PART II - GENERAL LICENSE PROVISIONS
1.
License/Term.
1.1 License. OCTA hereby gives Licensee a non-exclusive license in, on, over,
under, across and along the real property of OCTA in the location shown in the diagram
attached hereto as Exhibit "A" and incorporated herein by reference, and described in
Item 1 of the Basic License Provisions (the "License Property"), for construction,
installation, operation, alteration, maintenance, reconstruction and/or removal of the
Facility described in Item 5 of the Basic License Provisions, and any usual, necessary
and related appurtenances thereto (the "Facility"), 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. In connection with this
license, Licensee, its employees, agents, customers, visitors, invitees, licensees and
contractors (collectively, "Licensee's Parties"), subject to the provisions hereof, may have
reasonable rights of entry and access onto the License Property. The License Property,
adjoining real property (or any interest therein) of OCTA and personal property of OCTA
Page 3 of 15
.
.
FILE: OC-196
(collectively, "Licensee's Parties"), subject to the provisions hereof, may have reasonable
rights of entry and access onto the License Property. The License Property, adjoining real
property (or any interest therein) of OCTA and personal property of OCTA located thereon
shall hereinafter collectively be referred to as OCTA Property ("OCTA Property").
1.2 Term of Aareement. The term ("Term") of this Agreement shall commence on
the "Commencement Date" specified in Item 3 of the Basic License Provisions. Unless a
specific term of this Agreement is filled in at Item 4 of the Basic License Provisions, this
Agreement shall continue in full force and effect on a month-to-month basis as provided in
Item 4 of the Basic License Provisions until terminated by either party on thirty (30) days'
prior written notice. If Item 4 of the Basic License Provisions provides for a specific term,
then this Agreement shall be a license for the term specified in said Item 4; provided,
however, that aCTA shall have the absolute right to terminate this Agreement prior to the
date specified in Item 4 in its sole discretion by delivering thirty (30) days' prior written
notice to Licensee.
1.3 Condition of Premises. 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 given. Execution of this Agreement by Licensee shall be conclusive to establish
that the License Property is in good and satisfactory condition as of the Commencement
Date.
2.
Payments
2.1 License Fee. As consideration for the rights given hereunder, Licensee
agrees to pay to OCTA the Base License Fee specified in Item 6 of the Basic License
Provisions, as such amount may be adjusted as set forth in Section 2.2, and the Additional
License Fee specified in Item 5 of the Basic License Provisions. The one time Additional
License Fee and the first month's or year's, as the case may be, Base License Fee are due
and payable upon execution of this Agreement. Thereafter, the Base License Fee, as such
fee may be adjusted pursuant to the provisions of Section 2.2, shall be due and payable,
without demand, on or before one month or year, as the case may be, after the
Commencement Date and in each month or year, as the case may be thereafter. The Base
License fee for any fractional period at the end of the Term shall be prorated on a daily
basis and shall be due and payable without demand.
2.2
License Fee Adiustment.
2.2.1 Annual CPI Adjustment. The Base License Fee shall be
increased, but not decreased, as provided below on the first day of each month during
which an annual anniversary of the Commencement Date occurs unless another date(s) is
provided in Item 6 of the Basic License Provisions (the "Adiustment Date"). The adjusted
Base License Fee as of each Adjustment Date shall be the greater of the Base License Fee
Page 4 of 15
.
.
FILE: OC-196
CPI figure for the month that is three (3) months prior to the month containing the prior
Adjustment Date or, if none, the Commencement Date. As used in this section, the "CPI"
means the Consumer Price Index for Urban Wage Earners and Clerical Workers. Los
Angeles/Anaheim/Riverside, all items (1982-84 = 1 00), published by the U.S. Department
of Labor, Bureau of Labor Statistics, or if such index is no longer published, the U.S.
Department of Labor's most comprehensive official index then in use that most nearly
corresponds to the index named above. If it is calculated from a base different from the
base period 1982-84 = 1 00, figures used for calculating the adjustment shall first be
converted to the base period used under a formula supplied by the Bureau. If a
comparable index shall no longer be published by the U.S. Department of Labor, another
index generally recognized as authoritative shall be substituted by OCTA.
2.2.2 Fair Market Ad¡ustment. At intervals of not less than three (3) years,
the Base License Fee (as such fee may be adjusted by Section 2.2.1, above) payable
under this Section 2 shall be increased, but not decreased, in order to adjust the fee to
the then fair market rental value of the License Property as determined by OCTA in good
faith discretion. Such increases shall be effective on an anniversary date of the
Commencement Date. OCTA shall give Licensee written notice of the date and amount
of any such adjustment not less than thirty (30) days prior to the applicable anniversary
date. If no adjustment is made on the third anniversary of the Commencement Date, an
adjustment may nevertheless be made on subsequent anniversary date and thereafter at
intervals of not less than three (3) years apart. Any such adjustment may take into
consideration the increase in fair market rental value since the last adjustment.
2.3 Late Charqe. Licensee acknowledges that late payment by Licensee of any
payment owed to OCTA under this Agreement will cause OCTA to incur costs not
contemplated by this Agreement. Therefore, if any payment due from Licensee is not
received by OCTA within five (5) days of the date when due, Licensee shall pay to OCTA
an additional sum of ten percent (10%) of the overdue payment as a late charge, up to a
maximum amount of $500 for each late payment. The parties agree that this late charge
represents a fair and reasonable estimate of the administrative costs that OCT A will incur
by reason of a late payment by Licensee. Acceptance of any late payment charge shall
not constitute a waiver of Licensee's default with respect to the overdue payment, and
shall not prevent OCTA from exercising any of the other rights and remedies available to
OCTA under this Agreement, at law or in equity, including, but not limited to, the interest
charge imposed pursuant to Section 24.5.
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, the License Property
and/or any personal property, fixtures or equipment of Licensee used in connection
therewith, or (b) as a result of the Facility's operations.
Page 5 of 15
.
.
FILE: OC-196
4. Construction. Any work performed or caused to be performed by Licensee on the
Facility or the License Property shall be performed (a) at Licensee's sole cost and
expense; (b) in accordance with any and all applicable laws, rules and regulations
(including the OCTA's rules and regulations), and (c) in a manner which (i) meets or
exceeds the then applicable standards of the industry for such work, and (ii) is
satisfactory to OCTA. Prior to commencement of any construction, 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. Any such Work must be carried out pursuant to
work plans approved in writing by OCTA. In addition, Licensee shall provide OCTA and
all holders of underground utility facilities located within the License Property with at least
10 calendar 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.
Unless otherwise requested by OCTA, upon completion of any Work, Licensee shall
restore the OCTA Property to its condition immediately preceding the commencement of
such 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 described on, Exhibit "B" attached hereto and incorporated herein by
reference. 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
during the Term of this Agreement, or 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 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 on the Work to be
performed on the License Property.
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, costs incurred by OCTA in
furnishing any materials or performing any labor, reviewing Licensee's Work plans and/or
inspecting any Work, installing or removing protection beneath or along OCTA's tracks,
furnishing of watchmen, flagmen and inspectors as OCTA deems necessary and such
other items or acts as OCTA in its sole discretion deems necessary to monitor or aid in
compliance with this Agreement.
Page 6 of 15
.
.
FILE: OC-196
7. Liens. Licensee will fully and promptly pay for all materials joined or affixed to
Facility or the OCTA Property, and fully and promptly pay all persons who perform labor
upon said Facility or the OCTA Property. Licensee shall not suffer or permit to be filed or
enforced against the OCTA 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 payor 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 furnish evidence of payment 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 works performed for Licensee,
OCTA shall have the right to discharge same (including by paying the claimant), and
Licensee shall reimburse OCTA for the cost of such discharge within ten (10) business
days after billing. OCTA reserves the right at any time to post and maintain on the OCTA
Property such notices as may be necessary to protect OCT A against liability for all such
liens and claims. The provisions of this Section shall survive the termination of this
Agreement.
8. Maintenance and Repair. Licensee, at Licensee's sole expense, shall maintain the
License Property and the Facility in a condition satisfactory to OCTA during the Term of
this Agreement and shall perform all maintenance and clean-up of the License Property
and the Facility as necessary to keep the License Property and the Facility in good order
and condition, to OCTA's satisfaction and in accordance with applicable city codes.
Licensee shall be responsible for any citations issued by any agency having jurisdiction
as a result of Licensee's failure to comply with local codes. If any portion of the OCTA
Property, including improvements or fixtures, suffers damage by reason of the access to
or use of the License Property, by Licensee, Licensee's Parties or by Licensee's partners,
officers or directors, 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. Repair of damage shall include,
without limitation, regrading and resurfacing of any holes, ditches, indentations, mounds
or other inclines created by an excavation by Licensee or Licensee's Parties.
9 Landscapinq and Protective Fencinq. If required by OCTA, Licensee, at its sole
cost and expense, shall install barrier fencing and/or landscaping to shield the railroad
track area from public access and/or the Facility from public view. OCTA shall have the
right to review and approve fencing and/or landscaping plans prior to installation. All
fencing and/or landscaping work shall be done in accordance with the provisions of
Page 7 of 15
.
.
FILE: OC-196
Sections 4 and 5 above and will be subject to the maintenance and repair provisions of
Section 8 above.
10. Use. The License Property and the Facility shall be used only for the purposes
specified in Item 2 of the Basic License Provisions and for such lawful purposes as may
be directly incidental thereto. No change shall be made by Licensee in the use of the
License Property, the Facility or the commodity or product being conveyed through the
Facility (if any) without OCTA's prior written approval.
11. Abandonment. Should Licensee at anytime abandon the use of the Facility or the
License Property, or any part thereof, or fail at any time for a continuous period of ninety
(90) days to use the same for the purposes contemplated herein, then this Agreement
shall 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 the portion so abandoned or discontinued, without the
encumbrance of this Agreement. OCTA, at its option, may remove any improvements
remaining on the abandoned property, at Licensee's expense.
12. Breach. Should Licensee breach, or fail to keep, observe or perform any
agreement, covenant, term or condition on its part herein contained, then, in addition to
any other available rights and remedies, aCTA at its option may:
(a) perform any necessary or appropriate corrective work at Licensee's
expense, which Licensee agrees to pay to OCTA 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 therefrom Licensee or any other person occupying
the License Property, by any lawful means, and again repossess and enjoy the License
Property and the Facility, without prejudice to any of the remedies that OCTA may have
under this Agreement, at law or in equity by reason of Licensee's default or of such
termination.
13. Surrender. Upon termination of this Agreement, unless otherwise requested in
, writing by OCTA prior to the date of termination, Licensee, at its own cost and expense,
shall immediately remove the Facility and restore the OCTA Property as nearly as
possible to the same state and condition as existed prior to the construction,
reconstruction or installation of said Facility. Should Licensee fail to comply with the
requirements of the preceding sentence, OCTA may at its option (a) perform the same at
Licensee's expense, which costs Licensee agrees to pay to aCTA on demand, or (b)
assume title and ownership of said Facility. No termination hereof 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 OCTA Property is restored.
Page 8 of 15
.
.
FILE: OC-196
14. Indemnification. Licensee, on behalf of itself and its successors and assigns,
agrees to indemnify, defend (by counsel satisfactory to OCTA), and hold harmless OCTA,
Southern California Regional Rail Authority, and their officers, directors, commissioners,
employees, agents, contractors, successors and assigns (individually and collectively,
"Indemnitees"), to the maximum extent allowed by law, from and against all loss, liability,
claims, demands, suits, liens, claims of lien, damages, costs and expenses (including,
without limitation, any fines, penalties, judgments, litigation expenses, and experts' and
attorneys' fees) (collectively "Claims and Expenses"), that are incurred by Indemnitees
arising out of with the acts or omissions to act of the Licensee, or its officers, directors,
affiliates, Licensee's Parties or anyone directly or indirectly employed by or for whose acts
Licensee is liable (collectively, "Personnel") in connection with the OCTA Property or
arising from the presence upon or performance of activities by Licensee or its Personnel
with respect to the OCTA Property, including those Claims and Expenses (a) for bodily
injury or death of any person (including employees of Indemnitees) or damage to or loss
of use of property or (b) in connection with the non-performance or breach by Licensee or
its Personnel of any term of condition of this Agreement, in each case whether the Claims
and Expenses and/or events giving rise thereto occur during the Term of this Agreement
or thereafter.
The foregoing indemnity shall be effective regardless of any negligence (whether
active, passive, derivative, joint, concurring or comparative) on the part of Indemnitees,
unless caused solely by the negligence or willful misconduct of Indemnitees; shall survive
termination of this Agreement; and is in addition to any other rights or remedies which
Indemnitees 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 Indemnitees by Licensee or its Personnel shall not limit the
Licensee's indemnification obligations hereunder in any way, whether or not such claims
against Indemnitees may result in any limitation on the amount or type of damages,
compensation, or benefits payable by or for Licensee or its Personnel 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 erected by Licensee on the OCTA Property,
accident, fire or other casualty on the OCTA Property, or electrical discharge, noise or
vibration resulting from OCTA's transit operations on or near the OCTA Property. The
term "OCTA" as used in this section 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
Page 9 of 15
.
.
FILE: OC-196
or companies employed, retained or engaged by OCTA. Licensee, on behalf of itself and
its Personnel (as defined in Section 14) as a material part of the consideration for this
Agreement, hereby waives all claims and demands against OCT A for any such loss,
damage or injury of Licensee and/or its Personnel.
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 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, its Officers, Directors, Employees and Agents 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, evidencing
the existence, amounts and coverages of the insurance required to be maintained
hereunder. OCTA shall not be liable for the payment of any premiums or assessments
for 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 so as to monitor compliance with 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 payor 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, and shall not cause or permit the
License Property to be in violation of, any federal, state or 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"). Except
for Hazardous Materials expressly approved by OCTA in writing as shown on Exhibit "C"
attached hereto and incorporated herein by reference, Licensee shall not cause or permit,
or allow any of Licensee's Parties to cause or permit, any Hazardous Materials to be
brought upon, stored, used, generated, treated or disposed of on or about the OCTA
Property. Any such approved Hazardous Materials on or about the OCTA Property shall
Page 10 of 15
.
.
FILE: OC-196
be sorted, used, generated and disposed of in accordance with all applicable
Environmental Laws. 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 Law based upon, directly or indirectly, its properties or
effects.
Licensee shall indemnify, defend (by counsel acceptable to OCTA) and hold
harmless the Indemnitees (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 Indemnitees as a result of (a) Licensee's
breach of any prohibition or provision of this Section or (b) any release of Hazardous
Materials upon or from the Facility or the License Property or contamination of the OCTA
Property or adjacent property (i) which occurs due to the use and occupancy of the
Facility or the OCTA Property by Licensee or Licensee's Parties, or (ii) which is made
worse due to the act or failure to act of Licensee or Licensee's Parties.
The foregoing indemnity shall be effective regardless of any negligence (whether
active, passive, derivative, joint, concurring or comparative) on the part of Indemnitees,
unless caused solely by the negligence or willful misconduct of Indemnitees; shall survive
termination of this Agreement; and is in addition to any other rights or remedies which
Indemnitees may have under the law or under this Agreement.
In addition, in the event of any release on or contamination by Licensee of the
License Property, the 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 the OCTA Property, which Licensee has released or
allowed to be released in accordance with the requirements of all Environmental Laws
and to the satisfaction of OCTA and any governmental authorities having jurisdiction
thereover.
19. Underqround Storaqe Tanks.
SHALL INSTALL OR USE ANY
LICENSE PROPERTY.
NEITHER LICENSEE NOR LICENSEE'S PARTIES
UNDERGROUND STORAGE TANKS ON THE
20. Subordinate Riqhts. This Agreement is subject and subordinate to the prior and
continuing right and/or obligation of OCTA, its successors and assigns, to use the OCTA
Property in the exercise of its powers and in the performance of its duties, or for any other
Page 11 of 15
.
.
FILE: OC-196
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 the OCTA
Property, and to otherwise use the 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 the OCTA Property on the License Property and in the vicinity of the Facility.
This Agreement is subject to all licenses, leases, easements, restrictions, conditions,
covenants, encumbrances, liens, claims and other matters of title ("title exceptions")
which may affect the 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. OCT A makes no representations or warranties of any kind with
regard to title to the License Property.
21. Compliance with Laws. Licensee 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 OCTA 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 receive compensation (if any)
from the Condemnor only for the taking and damage to the Facility. Any other
compensation or damages arising out of such taking or condemnation awarded to
Licensee are hereby assigned by Licensee to OCTA.
23. Markers. Project markers in form and size satisfactory to OCTA, identifying the
Facility and its owners, will be installed and 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. Absence of markers in or
about OCTA Property does not constitute a warranty 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 shall be made in writing 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
Page 12 of 15
.
.
FILE: OC-196
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.
24.2 Non-Exclusive License. The license given hereunder is not exclusive and
OCTA specifically reserves the right to give other licenses within the License Property.
24.3
of California.
Governinq Law. This Agreement shall be governed by the laws of the State
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 Obliqations. Except as expressly herein provided, any
amount due to OCTA which is 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 Obliqations. All obligations of Licensee hereunder not fully
performed as of the expiration or earlier termination of the Term of this Agreement shall
survive the expiration or earlier termination of this Agreement, including without limitation,
all payment obligations with respect to License Fees and all obligations concerning the
condition of the OCTA 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 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 Assiqnment. This Agreement and the license given 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 given hereunder, without the prior written consent of OCTA, which may be
withheld in OCTA's sole and absolute discretion, and any attempted act in violation of the
Page 13 of 15
.
.
FILE: OC-196
foregoing shall be void and without effect and give 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 Licensee's affiliates, subsidiaries, or
holding companies, 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,
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 OCT A's sole discretion but at the sole expense of
Licensee and without a Licensee claim for reimbursement, Licensee agrees to perform
any further acts and to execute and deliver any documents which may be reasonably
necessary to carry out the provisions of this Agreement, including the relocation of the
Facility and the license given hereunder.
24.13 Waiver of Relocation Riqhts. Licensee hereby waives any right to
relocation assistance, moving expenses, goodwill or other payments to which Licensee
might otherwise be entitled under the Uniform 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, Government Code § 7260 et seq.,
but for this waiver and OCT A's express right of termination.
24.14 Time of Essence.
Agreement.
Time is of the essence in the performance of this
24.15 No Recordinq. Licensee shall not record or permit to be recorded in the
official records of the county where the License Property is located any memorandum of
this Agreement or any other document giving notice of the existence of this Agreement or
the license given hereunder.
24.16 Revocable License. Licensee agrees that notwithstanding the
improvements made by Licensee to the License Property or other sums expended by
Licensee in furtherance of this Agreement, the license given hereunder is revocable by
OCTA in accordance with the terms of this Agreement.
24.17 Entire Aqreement. This Agreement and the Exhibits hereto constitute the
entire agreement between the Parties with respect to the subject matter hereof and
Page 14 of 15
.
.
FILE: OC-196
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 in no way 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 "0", if
any, are hereby incorporated by this reference as if fully set forth herein.
Page 15 of 15
.
.
EXHIBIT "A"
.
.
FILE: OC-196
EXHIBIT "B"
aCTA INSURANCE REQUIREMENTS FOR LESSEES, LICENSEES AND PERMITTEES
Lessee, Licensee or Permittee shall procure and maintain for the duration of the contract, insurance
against claims for injuries to persons or damages to property which may arise from, or in connection
with, the use of aCTA property hereunder by the Lessee, Licensee, or Permittee, his agents.
representatives, employees or subcontractors.
INSURANCE REQUIR~P (check applicable boxes)
(X)A. Comprehensive General Liability, Including Products/Completed Operations, Premises.
Independent Contractors, Personal Injury, and Contractual Liability.
(X)B. Automobile Liability covering any auto (code 1).
(X)C. Workers' Compensation with limits established and required by the State of California and
Employer's Liability with limits of at least $100,000.
( )0.
Contractor's Pollution Liability with coverage for:
a. bodily injury, sickness, disease, mental anguish or shock sustained by any person,
including death;
property damage including physical injury to or destruction of tangible property
including the resulting loss of the use thereof, clean-up costs, and the loss of use of
tangible property that has not been physically injured or destroyed;
defense, including costs, charges and expenses incurred in the investigation,
adjustment or defense of claims for such compensatory damages, and
losses caused by pollution conditions that arise from the operations of the contractor
described under the scope of services of this contract.
b.
c.
d.
Course of Construction providing coverage for "all risks" of loss.
( )E.
( )F.
Property insurance against all risks of loss to any tenant improvements or betterments.
LIMITS OF INSURANCE REQUIRED (check applicable boxes)
(X)A. General Liability: $1,000,000 combined single limits per occurrence for bodily injury, personal
injury and property damage.
(X)B. Automobile Liability: $500,000 per occurrence for bodily injury and $500,000 per occurrence
for property damage or combined single limits $1,000,000 per occurrence
( )C.
Contractors Pollution Liability: $500,000 combined single limits per occurrence/$1,000,000
annual aggregate or
( )
Contractors Pollution Liability: $1,000,000 combined single limits per occurrence/$2,000,000
annual aggregate.
( )0.
Course of Construction: Completed value of the project.
Page 1 of 2
( )E.
.
.
FILE: OC-196
Property Insurance: Full replacement cost with no coinsurance penalty provision.
DEDUCTIBLES, SELF-INSURED RETENTIONS AND, OR SELF-INSURANCE
Any deductibles/self-insured retentions or self-insurance must be declared to and approved by
aCTA. At the option of aCTA either: the insurer shall reduce or eliminate such deductibles
or self-insured retentions as respects to aCTA, its officials and employees, or the Lessee.
Licensee, or Permittee shall procure a bond guaranteeing payment of losses, and related
investigations, claim administration and defense expenses.
OTHER INSURANCE PROVISIONS
The aCTA, its Officers, Directors, Employees and Agents must be designated as an
additional insured on the lessees, licensees, or permittees Comprehensive General and
Automobile Liability Insurance policies. Licensee shall furnish OCTA with insurance
endorsements and certificates, evidencing the existence, amounts and coverages of the
insurance required to be maintained hereunder.
The coverage shall be primary and any insurance or self-insurance maintained by OCTA, its
subsidiaries, officials and employees shall be excess of the contractor's insurance and shall
not contribute with it.
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 aCTA.
Course of construction policies shall contain the following provisions:
1 . aCTA shall be named as loss payee.
2. The insurer shall waive all subrogation rights against aCTA.
ACCEPTABILITY OF INSURERS
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 aCTA.
VERIFICATION OF COVERAGE
Lessee, Licensee, or Permittee shall furnish aCTA with original endorsements effecting
coverage required by this clause. The endorsements are to be signed by a person authorized
by that insurer to bind coverage on its behalf. All endorsements are to be received and
approved by aCTA before work commences.
Page 2 of 2
.
.
FILE: OC-196
EXHIBIT "C"
No HAZARDOUS MATERIALS are approved for the License Property and Licensee shall not
cause or permit, or allow any of Licensee's Parties to cause or permit, any Hazardous Materials
to be brought on, stored, used, generated, treated or disposed of on or about the License
Property or any other property owned by OCT A.
Page 1 of 1
.
.
FILE: OC-196
EXHIBIT "D"
This License is subject to the following additional terms and conditions:
1. All Licensee's contractors shall enter into a Right of Entry agreement with the Southern
California Regional Rail Authority (SCRRA) before performing any activity on railroad
property.
2. All Licensee's contractors, at their sole cost and expense, shall obtain and maintain in
force and effect insurance as required by SCRRA during the entire construction period.
Contractors shall furnish copies of the insurance certificates to all affected railroads.
3. Licensee and/or Licensee's contractor(s) must contact SCRRA's Right of Way Engineer
(213/452-0256) to arrange for inspection, flagging, and/or other protective services no less
than five working days prior to beginning work when any:
a) Personnel will be operating within twenty feet of the nearest rail,
b) Equipment will be operating within the OCTA right of way, or when any erection or
construction activities will be undertaken, regardless of elevation above or below
track,
c) Excavation will be undertaken on the OCT A right of way,
d) Grading or blasting (if allowed by OCT A) will be undertaken in the OCT A right of way.
Prior notification does not guarantee the availability of a flag person for the proposed date of
activity.
4. The Licensee and/or Licensee's contractor(s) shall be responsible for the location and
protection of any and all surface, sub-surface, and overhead structures.
5. Grade crossing signal cables are located at or near most highway or street/railroad
crossings. Licensee and/or Licensee's contractor(s) shall contact SCRRA's Right of Way
Engineer (213/452-0256) for the location of these cables. In case of signal emergencies,
the contractor shall call SCRRA's 24-hour signal emergency number, 800/404-9464
(XING).
6. Licensee may self insure under an actuarially sound program of self insurance, provided
Licensee provides OCTA a Certificate of Self-Insurance or Bond, stating its self
insurance limits or noting that it specifically meets OCTA's insurance requirements, and
names OCTA, its officers, directors, employees and agents as additional insureds.
From time to time, upon request, Licensee will furnish such information regarding the
program as OCTA may reasonably request, including but not limited to financial and
Page 1 of 2
.
.
FILE: OC-196
actuarial information. Notwithstanding the foregoing, Licensee will require third party
coverage, in the amounts and under the terms indicated herein, of all contractors, agents,
or any person or entity (other than Licensee's direct employees) who enter in, onto or
over OCTA property for purposes related to this Agreement.
Page 2 of 2