HomeMy WebLinkAboutORANGE COUNTY TRANSPORTATION AUTHORITY (OCTA) (2)NSURANCE NOT ON FILE
WORK MAY NET PROCEED
CLERK OF COUYI rll- T
DATE:
Return ORIGINAL
executed copy to COTC,
M-30
FILE: OC-285
20 it
RANGE COUNTY TRANSPORTATION AUTHORITY
0: PKJ nt now$) For- LICENSE AGREEMENT
N-2020-118
This LICENSE AGREEMENT ("Agreement") is made and entered into as of June 17, 2020, 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 longitudinal portion of the OCTA railroad right of way near and
between Mile Post 173.80 and174.41 located along a portion of Lincoln Avenue, between Park
Lane and Santiago Creek in the City of Santa Ana, CA as shown on Exhibit "A" attached,
Approximate area: 14,952 t square feet
2. Use of License Property: A pedestrian Facility and associated appurtenances only, and no other
uses, and subject to all the terms, conditions and limitations as set forth in Part II of this
Agreement.
3. Commencement Date: Commencement Date: 5ur-v 2'J, 2020.
4. Term: The Term shall commence on e, Z`f 2020 and Terminate
on 3wLv a`f ,2040, or as otherwise provided for by
the terms and conditions of this Agreement.
5, License Fees:
A. Base License Fee: Waived
B. One -Time Fee: $1,500.00
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:
CITY OF SANTA ANA
20 Civic Center Drive
Santa Ana, CA 92702
Attn: Gilbert Castillo
9, Facility: Pedestrian pathway (Facility) improved with, but not limited to, decomposed granite,
irrigation system, landscape, trees, light standards, fence panels, and related appurtenances.
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The foregoing Basic License Provisions and the General License Provisions set forth below in Part
11 are incorporated into and made part of this Agreement.
PART 11-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 both on the attached Exhibit "A", incorporated herein by reference, and in Item
1 of the Basic License Provisions (the "License Property"), 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 usual, necessary and related appurtenances thereto (the
"Facilit '), 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 Agreement, Licensee, its officers, directors, employees, agents, customers, visitors,
invitees, licensees, and contractors (collectively, "Llcensee's Parties'), subject to the provisions hereof,
may have reasonable rights of entry and access onto the License Property. The License Property, any
adjoining real property (or any interest therein) owned or controlled by OCTA, and personal property of
OCTA located thereon, shall hereinafter collectively be referred to as "OCTA Property." As provided for in
Section 24.19 of this Agreement, the license granted herein shall be further subject to the Additional
Provisions set forth in Exhibit "B" attached hereto and incorporated herein.
1.2 Term of Agreement. (Intentionally deleted.]
1.3 Public Use. In addition to any and all other termination rights of OCTA described herein,
Licensee hereby expressly recognizes and agrees that the License Property is located on and part 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"); and that Licensee's use of
the License Property , although expected to continue for the specified Term set forth in Part 1, Section 4,
Licensee has no right to nor expectation of use for any particular length of time and OCTA may terminate
this License and Agreement by providing a one-yearwritten notice to Licensee. Accordingly, as a condition
to entering into this License, Licensee expressly acknowledges and agrees that:
(a) OCTA may terminate this License as set forth above 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 approval proceeding; nor file suit to
prevent or delay any Public Use when planned or implemented on or adjacent to the License 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 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 Premises, at Licensee's sole cost and expense, on or before the expiration of the one-year notice
of termination period as provided by this Section 1.3; 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 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 Uniform
Relocation Assistance and Real Property Acquisition Policies Act of 1970, as amended, 42 U.S.C. §4601
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et seq. and/or the California Relocation Assistance Law, as amended, California Government Code §7260
et seq; and
(ii) compensation under any eminent domain or inverse condemnation law.
1 A 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
2.1 License Fee. As consideration for the rights given hereunder, Licensee agrees to pay to
OCTA the Additional License Fee specified in Item 5 of the Basic License Provisions. The one-time
Additional License Fee is due and payable upon execution of this Agreement
2.2 License Fee Adjustment. [intentionally deleted]
2.3 Fair Market Adiustment, [Intentionally deleted]
2.4 Late Charge. (Intentionally deleted]
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 the Licensee's Parties' use of the
License Property, or the Facility.
4. Construction. All construction work performed or caused to be performed by Licensee on the
Facility or the License Property after the initial construction shall be performed in accordance with any and
all applicable laws, rules and regulations (including the OCTA's rules and regulations), and in a manner
which (1) meets or exceeds the then applicable standards of the industry for such construction work, and
(ii) Is satisfactory to OCTA. 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. Any such Work must be carried out pursuant to work plans approved in writing by OCTA, which
approval may not be unreasonably withheld and must be approved within (10) business days of receipt of
plans by OCTA, otherwise such plans shall be deemed approved by OCTA. In addition, Licensee shall
provide OCTA and all hollers of underground utility facilities located within the License Property with at
feast 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, which approval may not be
unreasonably withheld and OCTA shall approve the contractors within five (5) business days of notification,
otherwise such contractors shall be deemed approved 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 Section 16. 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,
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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 OCT& in
the amounts and coverages specified on, and issued by insurance companies as described in Section 16.
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; provided OCTA provide to Licensee 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, 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. In order to receive reimbursement under this section, OCTA shall submit an invoice
to Licensee, and Licensee shall pay the undisputed portion of the invoice within thirty (30) days of
Licensee's receipt of same.
7. Liens. Licensee will fully and promptly pay for all materials joined or affixed to Facility or the
Licensed Property, and fully and promptly pay all persons who perform labor upon said Facility or the
Licensed Property. Licensee shall not suffer or permit to be filed or enforced against the Licensed 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 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 anytime 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 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 and in accordance with Exhibit B during the
Term and shall be responsible for all clean up and maintenance of the OCTA Property resulting from its
use thereof under this License. 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 thereof by
Licensee or Licensee's Parties, 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. Landscaping/Protective Fencing. 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
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with the provisions of 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 or the Facility without OCTA's prior
written approval.
11. Abandonment. Should Licensee at any time 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,
tern or condition on its part herein contained, then, in addition to any other available rights and remedies,
OCTA 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. OCTA shall notice the Licensee in
writing of any deficiencies and request the appropriate repairs or improvement be made prior to OCTA
performing the work and billing the Licensee. If the Licensee fails to act within sixty (80) days or if
such breach cannot be cured within such sixty (60) day period then if Licensee fails to reasonably
prosecute the cure of the breach upon OCTA's sole determination, then OCTA can cause the work to
be done and demand payment from the Licensee if warranted, or
(b) with written notice and after Licensee's failure to cure the breach within sixty (60) days
of such written notice being given, or if such breach cannot be cured within such sixty (60) day period then
if LICENSEE fails to reasonably prosecute the cure of the breach upon OCTA's sole determination, OCTA
may 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 rights and remedies that OCTA or SCRRA may have under this Agreement,
at law or in equity by reason of Licensee's default. Notwithstanding the foregoing, if Licensee's breach
involves a significant impact to public health, welfare or safety, OCTA may require in writing that the
Licensee cure the breach in a lesser period,
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 on OCTA Property prior to the date of termination, Licensee,
at its own cast 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 OCTA 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.
14. Indemnification. Except for OCTA's sole negligence, Licensee shall indemnify, defend and hold
harmless OCTA, its officers, directors, employees and agents ("indemnitees") from and against any and
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all claims (including attorneys' fees and reasonable expenses for litigation or settlement) for any loss or
damages, including any bodily injuries and/or death, or damage to or loss of use of property caused by the
negligent acts, omissions, or willful misconduct by Licensee or Licensee's Parties, including members of
the pubic, in connection with or arising out of the performance of this Agreement use or the use of the
License Property or Facility.
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 Licensee's Parties 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. Except for the gross negligence or intentional misconduct of OCTA,
Licensee's assumption of risk shall include, without limitation, loss or damage caused by any structure or
improvement 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 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 OCTA
for any such loss, damage or injury of Licensee and/or its Personnel. In that connection, 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 shall survive the termination
of this Agreement,
16. Insurance.
A. Licensee shall procure and maintain insurance coverage or evidence of self-insurance during
the entire Term of this Agreement. OCTA recognizes that Licensee is a financially responsible corporate
entity and as long as Licensee's risk financing program stays substantially the same, Licensee does not
need to provide proof on an annual basis. OCTA reserves the right to request certified copies of all related
insurance policies. Licensee shall provide the following coverage:
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Commercial General Liability [CGL], to include Products/Completed Operations,
Independent Contractors', Contractual Liability, and Personal Injury Liability with a minimum
of $1,000,000.00 of coverage with:
a. Removal of the CGL exclusion for pollution liability, or
b. A Pollution Liability policy with minimum limits of $1,000,000.00; and
c. Automobile Liability Insurance with combined single limits of a minimum of
$1,000.000.00; and
d. Workers' Compensation with limits as required by the State of California; with a waiver
of subrogation rights; and
e. Employers' Liability with limits of a minimum of $1,000,000.00.
8. Subject to prior approval by OCTA, Licensee may meet the requirements through (i) self-
insurance, (ii) coverage through a joint powers insurance authority (JPIA) which is duly formed under the
laws of the State of California, or (III) utilize a combination of self-insurance and JPIA coverage, or (iiii)
commercial Insurance policies.
C. OCTA, its officers, directors, employees and agents must be designated as additional insured
on the Licensee's 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.
D. The coverage shall be primary and any insurance or self-insurance maintained by OCTA shall
be excess of the Licensee's insurance and shall not contribute to it.
E. Each insurance policy required by this clause shall be endorsed to state that coverage shalt not
be suspended, voided, cancelled 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
terminated, and Licensee fails to provide adequate assurances that continuous coverage is being provided,
OCTA, at its sole discretion, may obtain such coverage at Licensee's expense.
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 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 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 brought upon, stored, used, generated, treated or disposed of on the License Property or the
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 Law based
upon, directly or indirectly, its properties or effects,
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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 OCTA Property or contamination of the OCTA Property (i) which occurs
due to the use and occupancy of the Facility or the Licensed 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 of 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 or Licensee's Parties caused or permitted to be brought upon the
OCTA Property, in accordance with the requirements of all Environmental Laws and to the satisfaction of
OCTA and any governmental authorities having jurisdiction thereover.
19. Underground Storage Tanks. NEITHER LICENSEE NOR LICENSEE'S PARTIES SHALL
INSTALL OR USE ANY UNDERGROUND STORAGE TANKS ON THE LICENSE PROPERTY.
20. Subordinate Rights. This Agreement is subject and subordinate to the prior and continuing right
and/or obligation of OCTA, SCRRA, Amtrak, BNSF and their successors and assigns, to use the OCTA
Property in the exercise of its powers and in the performance of its duties, orfor 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 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. OCTA 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 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
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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 Condemner 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. 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, SCRRA, Amtrak or BNSF or their respective agents, officers, contractors or employees and in
entering into this Agreement expressly waives any such rights.
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 the License Property and 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 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 granted hereunder Is not exclusive and OCTA
specifically reserves the right to grant other licenses within the License Property.
24.3 Governinq Law. This Agreement shall be governed by the laws of the State of California.
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 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 Obligations. 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 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.
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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 Assi,nq ment. 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,
and any attempted act in violation of the foregoing shall be void and without effect and grant OCTA the
right to immediately terminate this Agreement.
24.10 Attomey'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 OCTA'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 granted hereunder.
24.13 Acknowledgement of No Right to Claim Relocation Benefits Against OCTA. Licensee
hereby acknowledges that if Licensee vacates the property, voluntarily or involuntarily, then Licensee is
not entitled to any relocation benefits under this Agreement, or by virtue of state or federal law, and to the
extent permitted under the law waives any such benefits. Further, Licensee agrees it is not entitled to loss
of good will or moving expenses 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 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 granted 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 granted hereunder is revocable by OCTA in accordance with the terms of this Agreement.
24.17 Entire Agreement. This Agreement and Exhibits 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 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.
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24.19 Additional Provisions Those Additional Provisions set forth in Exhibit "B", 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 date first written above.
ORANGE COUNTY4rRANSPORpATION AUTHORITY
Bell, P.E.
Director, Capital Programs
APPROVED AS TO
A
James V. Donich
Generig Counsel
LICENSEE
CITY OF SANTA ANA
By: yw ,d.2lzei
Kristine Ridge
City Manager
Date: _`7�17/'�C�
APPROVED AS TO FORM:
hn M. Funk, A tan itlltomey
ATT( if Jl w
7`City Clerk
Daisy Gomez, MMC -� ,
Clerk of the Council
Page 11 of 15
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Date: 3 Zc�20
RECOMMEND FOR APPROVAL
7- /b-2ozo
s
Nabil Saba
Executive Director
Public Works Agency
(To be Attached)
Page 12 of 15
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I4873391
LEGEND
LINEBRANCH: COUNTY:
F
ORANGE ORANGE
LOCATION:
CITY OF SANTA ANA
EXHIBIT W
MILE POST:
173.80-174.41
LICENSE AREA (IN SQUARE FEET):
14,952 +/ SQ. FT.
NEAREST CROSS STREET:
ALONG PORTION OF LINCOLN AVE. (S/O SANTIAGO
CREEK)
USE:
PEDESTRIAN TRAIL
This
or warranty
OCTA R/W
1�,
( FAIRHAVEN AV
LICENSEE:
CITY OF SANTA
ANA
O CTA
ORANGE COUNTY CONTRACT NO.:
TRANSPORTATION
AUTHORITY
P.O. BOX 14184 OC-285
550 SOUTH MAIN STREET
ORANGE, CA 92863-1584
TEL. NO. V14) 560-6282
SCALE: DATE:
N-T-S 12118/19
FILE: OC-285
EXHIBIT "B"
This License is subject to the following additional terms and conditions:
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. Christos
Sourmelis with SCRRA's Right -of -Way Encroachments Office can be reached at (909) 394-
3418. These forms can be accessed through SCRRA's website www.metrolinktrains.com,
("About Us", "Engineering and Construction", and "Manuals").
2. 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.
3. If the personnel working on this project do not have CURRENT, SCRRA Safety Training
Certification — Safety training is required for all work near or within the railroad right of way.
Licensee's contractor shall contact Mr. Trevor Williams with Jacobs Engineering at 714-659-
1141 to schedule RWP safety training. The contractor will need a valid SCRRA project number,
located in the upper right-hand comer of the executed SCRRA Right -of -Entry Permit. No work
may commence on the railroad right of way until this training has been completed
Flagging services are limited due to projects SCRRA has going on within the SCRRA Right -of
Way. 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. Dale Stuart Jr. with Jacobs
Engineering at 1-213- 305-8424 to schedule (EIC) Flagging Services. The contractor will need
a valid SCRRA project number, located in the upper right-hand comer of the Right -of -Entry.
5. 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.
6. The applicant andlor the contractor shall follow SCRRA rules and regulations, addressed in
"Rules and Requirements for Construction on Railway Property" (SCRRA Form 37). "Form 37
can be found on our website at:
https://www.metrolinktrains.com/alobalassets.about.engineering.scrra form no 37.pdf
Any and all excavations will adhere to SCRRA's Excavation Support Guidelines. SCRRA's
Excavation Support Guidelines can be found on our website at:
htts://www.metrolinktrains.com/globalassets/aboutten,gineerina/scrra excavation
support auidelines.pdf
8. 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
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with the current Control Handbook (WATCH), Temporary Traffic Control Work At or Near Grade
Crossing Guidelines prepared by SCRRA and SCRRA's Engineering Standard ES4301.
9. Pedestrian Facility will adhere to SCRRA's Rail -with -Trail Design Guidelines. SCRRA's Rail -
with -Trail Design Guidelines can be found on our website at:
htts:/Iwww.metrolinktrains.com/globalassets/about/engineering/rail with trail design
quidelines.pdf
10. The Licensee agrees to comply and to ensure that its contractor complies with instructions of
SCRRA's Employee -In -Charge (EIC) 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.
11. The Licensee shall obtain permission from any fiber optic, gas or oil lines that may be located
along or across the right-of-way.
12. If there will be ANY excavation within the RR ROW, the contractor shall call SCRRA's signal
department (909) 592-1346 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.
13. Before excavating, the Contractor must determine whether any underground pipe lines, 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.
14. The applicant and/or the contractor shall follow SCRRA rules and regulations, addressed in
"Rules and Requirements for Construction on Railway Property" (SCRRA Form 37)." Form 37
can be found on the SCRRA website at
http:lfwww.metrolinktrains.com//pdfs/EngineeringConstruction/SCRRA Form No 37
01.12.17
15. If SCRRA 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.
16, Please Note: Once the project has gone out to bid and a contractor selected they will
need to provide (in one complete submittal):
1. A completed Site Specific Work Plan (SSWP) that can be found on our website at:
https://www.metrolinktrains.comfglobalassetstaboutiengineering/site specific work
lap n.pdf
2. Shoring and Excavation Plans (meeting SCRRA requirements/standards)
3. Daily Schedule of Activities
4. Completed SCRRA Form 6 along with Insurance Certificates meeting SCRRA
Parameters of Coverage as outlined on pages 9-13 of the Form 6 + Performance Bond,
SCRRA's Form 6 may be found on our website at:
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htt s:llwww< etrolinktrains.camlabalassetslabouflen�ineeringlscrra form nq 6.pdf
5. Monies to cover; continued plan review, continued administration fee, contingency,
(EIC) Flagging Services, 3rd Party Safety Training, Cable Signal Marking. These costs
are outlined on our ROE Schedule of Pees that may be found on our website
at:htt s:tlwww.metrolinktrains.coml lobalassets/abouV# ineerin lscrra sche uie of
fees for third party„construction.pdf
6. Finally, PLEASE ADVISE THE CONTRACTOR TO REACH OUT TO ME (Christos
Sourmells, sourmelisc@ascrra.net or 909-392-8463) REFERENCING SCRRA PROJECT #:
881696 PRIOR TO SUBMITTAL AND I WILL GLADLY WALK THEM THROUGH THE
PROCESS AND ANSWER ANY QUESTIONS THEY MAY HAVE.
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