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A-2004-182
LICENSE AMENDMENT AGREEMENT
This FIRST AMENDMENT ("Amendment"), designated OC-196-A, to License
Agreement OC-196 ("Agreement") between the ORANGE COUNTY TRANSPORTATION
AUTHORITY, a public entity ("OCT A"), and the CITY OF SANTA ANA ("Licensee"), dated
June 20, 2002, hereby amends the Agreement as provided below. All other terms and
conditions of the Agreement remain in full force and effect.
PART I. - BASIC LICENSE PROVISIONS
4.
Term:
2014.
Ten (10) years beginning on August 1, 2004 and terminating on July 31,
7.
Insurance Requirements: Insurance requirements are detailed on Exhibit "B-1",
which is attached hereto and made a part hereof.
8.
OCTA and SCRRA's Addresses
Orange County Transportation Authority
550 S. Main Street
P.O. Box 14184
Orange, CA 92863-1584
Southern California Regional Rail Authority
700 South Flower Street, 26th Floor
Los Angeles, CA 90017-4101
Attn: Naresh Patel
PART II. GENERAL LICENSE PROVISIONS
1.2 Term of Aareement. The term ("Term") of this Agreement shall commence
on the date specified in Item 4 of the Basic License Provisions and shall remain in effect
for the term specified in Item 4 of the Basic License Provisions, subject to OCTA's right to
terminate this Agreement in the event of Licensee's breach, as set forth in Section 12 of
this Agreement's General Provisions, or Licensee's abandonment of the Facility or the
License Property, as set forth in Section 11 of this Agreement's General License
Provisions.
4.
Construction.
4.1
General Provisions. Any work performed or caused to be performed by
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. .
Liq'msee 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 aCTA's rules and regulations); and (c) in a manner which is (i) equal
to or greater than the then applicable standards of the industry for such work, and (ii)
reasonably satisfactory to aCTA. Licensee shall prepare detailed work plans (the 'Work
Plans") setting forth any and all construction, reconstruction, installation, restoration,
alteration, repair, maintenance, replacement, removal and landscaping (hereinafter,
"Construction Work") Licensee plans to perform on the License Property. Such Work
Plans shall be submitted to aCTA for its review and approval prior to any work being
performed, and shall be developed, altered and/or changed so as to meet the
requirements of aCTA. Licensee shall not perform, nor cause any of Licensee's Parties
to perform, any Construction Work on License Property until it has received written
approval of the relevant Work Plans from OCTA. Changes to approved Work Plans are
allowed hereunder. However, all such changes must be reviewed and approved in writing
by aCTA prior to their implementation. Any Construction Work to be performed on the
License Property must be carried out pursuant to Work Plans or changes approved in
writing by aCTA. In no event shall approval by aCTA of any plans for any Construction
Work be a representation that any such plans comply with any applicable laws nor shall
aCTA bear any liability or responsibility for the work performed on the License Property.
Licensee shall comply with all laws applicable to any Construction Work, and shall be
solely responsible for obtaining all required approvals and permits for the same and for
any liability for the same.
4.2. Initial Construction of Facilitv. With respect to the initial construction and
installation of the Facility, Licensee shall ensure that neither it nor any of Licensee's
Parties shall enter upon the License Property until Licensee and each of Licensee's
Parties which plan to enter the License Property have met all of the requirements of
SCRRA and aCTA, which may include a requirement that each of such Licensee's Parties
enter into a written right-of-entry agreement with SCRRA and aCTA. Licensee's request
for such SCRRA and aCTA requirements shall be made in writing and must be delivered
to SCRRA and aCTA, at the addresses set forth in Items 8 and 9 of this Agreement's Part
I, at least ten (10) working days prior to any of Licensee's Parties proposed entry onto the
License Property. Said notice to SCRRA is not required for work on the License Property
performed by SCRRA at the behest of Licensee.
4.3 Work Performed After Initial Construction. Except for emergency work and
normal day-to-day maintenance work, the provisions of Sections 4.1 and 4.2 of this
Agreement's General License Provisions shall also apply to all work performed on the
Facility or the License Property after the initial construction and installation of the Facility.
In cases of emergency, Licensee shall notify aCTA's representative personally or by
phone and obtain authorization prior to commencing such work. Normal, day-to-day
maintenance work on the Facility or the License Property may be performed by Licensee
or authorized Licensee's Parties without written notice to aCTA or SCRRA, without Work
Plans and without Work Plan approval by aCTA (subject to the other provisions of this
Agreement), so long as Licensee and its authorized Licensee's Parties performing such
day-to-day maintenance; (i) have previously met aCTA's and SCRRA's requirements as
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detailed herein; (ii) have previously received aCTA's and SCRRA's written approval to
acœss the License Property to perform such day-to-day maintenance; (iii) comply with all
aCTA and SCRRA requirements at all times while on the License Property, and (iv)
perform all such maintenance work from entirely within the License Property.
4.4. As-Built Drawinas. Within ninety (90) days after the substantial completion
of the construction and installation of the Facility, Licensee shall deliver to OCTA, for
aCTA's review and approval, two (2) full sets of as-built drawings for the Facility (the "As-
Built Drawings"). The As-Built Drawings are subject to the review and approval of aCTA,
and shall be developed, altered and/or changed so as to meet the requirements of aCTA.
At a minimum, however, such As-Built Drawings must: (i) be substantially of the form of
the Work Plans approved by OCTA and SCRRA; (ii) include all changes to the Work Plans
which were approved, in writing, by aCTA; (iii) show all improvements and construction
performed by Licensee, or caused to be performed by Licensee, on the License Property;
(iv) clearly indicate and label the area of the License Property; (v) show the centerline of all
railroad tracks existing on the aCTA Property as of the date that construction and
installation of the Facility was substantially complete; and (vi) show, to scale, on all
overhead and cross section drawings the boundaries of the License Property, and the
Facility with respect to the centerline of the mainline railroad track existing on the aCTA
Property as of the date that construction and installation of the Facility was substantially
complete. To the extent that the As-Built Drawings indicate or show that the Facility has
not been constructed pursuant to the Work Plans approved by aCTA or any change
thereto approved by aCTA, Licensee shall, at the request of aCTA or SCRRA, rebuild,
reconstruct and/or reinstall the facility, at Licensee's sole cost and expense, so that the
Facility will be constructed, located and installed in accordance with the approved Work
Plans and the approved changes thereto. Failure to provide As-Built Drawings to aCTA
as set forth herein shall be deemed a material breach of this Agreement.
5. Contractors--Approval and Insurance. All agents, contractors and subcontractors of
Licensee performing construction work on the Facility or the License Property shall first be
approved in writing by OCTA. Licensee shall cause any and all of its agents which may
(a) be involved with such construction 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 such
construction work insurance, as required by aCTA, in the amounts and coverages
specified on, and issued by insurance companies as described on Exhibit "B-1". aCTA
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.
8. Maintenance and Repair. Licensee, at Licensee's sole expense, shall maintain the
License Property and the Facility in a condition satisfactory to aCTA 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 aCTA's satisfaction and in compliance with all applicable laws, codes,
regulations and ordinances. Licensee shall be responsible for any citations issued by any
agency having jurisdiction as a result of Licensee's failure to so comply. If any portion of
the aCTA Property or the property of other authorized user of the railroad tracks (including
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SCBRA, the National Railroad Passenger Corporation (Amtrak), the Burlington Northern
Santa Fe (BNSF», including but not limited to improvements, fixtures or rolling stock,
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 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 damaged property to as good a condition as before such cause of damage
occu rred.
12. Breach. (b) with written notice or demand, and Licensee's failure to cure
the breach within thirty (30) days of notice being given, or fewer days in the event the
breach impacts public health, welfare or safety, aCTA 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 OCT A 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, (including, but not limited to, a
termination resulting from expiration of the license term, or a breach or an abandonment of
all or a portion of the Facility or the License Property) unless otherwise required in writing
by aCTA prior to the date of termination, Licensee may, at its own cost and expense: (i)
remove the Facility and restore the aCTA Property to the same state and condition as
existed prior to the construction, reconstruction or installation of said Facility, or (ii) leave
all, or any portion of, the Facility in place on the License Property, or (iii) replace the
Facility with a comparable facility approved by aCTA. Should Licensee fail to select one
of the options listed in the preceding sentence prior to six (6) months before the
termination date, unless termination is due to a breach by Licensee in which case aCTA
shall select the option which Licensee shall implement immediately, aCTA may at its
option (a) select an option on Licensee's behalf and at Licensee's sole expense, 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 occurring prior to the date the Facility is removed and the
aCTA Property is restored,
14, Indemnification. Licensee shall indemnify, defend (by counsel satisfactory to
aCTA), and hold harmless aCTA, SCRRA (except for work performed on the Facility by
SCRRA at the behest of Licensee), and other passenger and freight railroad entities
including, but not limited to, Amtrak, BNSF, and their respective 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 (including, but not
limited to consequential 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 or
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cOl1pected in any manner with the use or misuse of the Licensed Property or the Facility
by Licensee's Parties, members of the public and all others who enter onto the License
Property (specifically excluding SCRRA, its officers employees, agents and contractors
when said officers, employees, agents and contractors of SCRRA are performing work on
the Project at the behest of Licensee) and any alleged act or omission to act of the
Licensee, its officers, directors, affiliates, Licensee's Parties or anyone directly or indirectly
employed by or for whose acts Licensee is liable (specifically excluding SCRRA, its
officers employees, agents and contractors when said officers, employees, agents and
contractors of SCRRA are performing work on the Project at the behest of Licensee)
(collectively, "Personnel") in connection with this Agreement, the License Property, and or
the Facility.
The foregoing indemnity shall be effective regardless of any negligence (whether
active, passive, derivative, joint, concurring or comparative) on the part of Indemnitee5
unless caused by the sole negligence or willful misconduct of Indemnitee. Licensee's
obligation to indemnify aCTA and the above-referenced passenger and freight railroad
entities (except for SCRRA while it is performing work on the Project at the behest of
Licensee) 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.
Claims against the Indemnitees (except for SCRRA while it is performing work on
the Project at the behest of Licensee) 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, Licensee, Licensee's Parties and Personnel, members of the
general public and their property and Licensee's 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 placed by Licensee on the License Property, accident, fire or other casualty
on the License Property, or electrical discharge, noise or vibration resulting from rail-
related transit operations on or near the License Property. Licensee, on behalf of itself, its
agents and their Personnel (as defined in Section 14) as a material part of the
consideration for this Agreement, hereby waives all claims and demands against the
Indemnitees for any such loss, damage or injury of Licensee, its agents and/or
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 which the creditor does not
know or suspect to exist in his favor at the time of executing the release,
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which if known by him must have materially affected his settlement with the
debtor.
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 Indemnitees as additional insureds in the amounts and coverages specified and
issued by insurance companies as described on Exhibit "B-1". OCT A 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
OCT A with insurance endorsements and certificates, evidencing the existence, amounts
and coverages of the insurance required to be maintained hereunder. OCT A shall not be
liable for the payment of any premiums or assessments for insurance required to be
maintained by Licensee under this Agreement. Failure by Licensee to obtain, maintain
and provide OCT A with evidence of continuous required coverage throughout the Term
shall constitute a material breach of this Agreement.
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 all applicable governmental authorities for its use of the License Property and the
Facility, at its sole cost and expense. In addition, Licensee shall not interfere with the
operations of OCTA, SCRRA, and other freight and passenger railroad entities.
All other terms and cond itions of the Agreement remain in full force and effect.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by
their duly authorized representatives.
ey . hernambucq
Director pf Transportation Systems Development
Date: 2D<.c. oc.f
By:
APPR
D AS TO FORM:
Kennard R. Smart, Jr.
General Counsel
Date:---1)o-Q ~ì '2.r:Jo'(
\
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CITY aF SA~
By: !2~
David N, Ream, City Manager
Date:
ATTEST:
By: 6il!;:. , ,
Clerk of the Council
Date:
APPRaVED AS TO FORM:
BY:-dt.1 A~ 0 QJr
¡;Jr. Ity Attorney
Date:
Ja s G. Ross
E cutive Director Public Works
Q/'/7J'/
.
. >
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EXHIBIT "B-1"
INSURANCE REQUIREMENTS FOR LICENSEE
Licensee 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 Licensee, its agents, representatives, employees or
subcontractors.
(X)C. Workers' Compensation with limits established and required by the State of California
and with a waiver of subrogation and Employer's Liability with limits of at least
$1,000,000.
LIMITS OF INSURANCE REQUIRED
licable boxes
(X)A. General Liability: $2,000,000 minimum combined single limits per occurrence for bodily
injury, personal injury and property damage and $5,000,000 aggregate limit.
(X)B, Automobile Liability: $2,000,000 minimum per occurrence for both bodily injury and
property damage.
OTHER INSURANCE PROVISIONS
Exclusion for explosion, collapse and underground hazard shall be removed.
SCRRA, Amtrak and BNSF, and other freight and passenger rail services providers as
designated by aCTA and their officers, Directors, Employees and agents must be
designated as an additional insured on the Licensee's Comprehensive General and
Automobile Liability Insurance Policies.
Coverage purchased on a claims made form shall provide for at least a two (2) year
extended reporting or discovery period if (a) the coverage changes from a claims made
form to an occurrence form, (b) there is a lapse/cancellation of coverage, or (c) the
succeeding claims made policy retroactive date is different for the expiring policy.
The coverage shall be primary and any insurance or self-insurance maintained by
aCTA, its subsidiaries, officials and employees shall be excess of the Licensee'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. In the event aCTA
learns that Licensee's insurance coverage is being terminated and Licensee fails to
provide adequate assurances that continuous coverage is being provided, aCTA and at
its sole discretion, may obtain such coverage at Licensee's expense.
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EXHIBIT "D"
This Agreement is subject to the following additional terms and conditions:
1. If a natural disaster causes the railroad track located on or adjacent to the Licensed
Property to become inoperable, aCTA, at its sole and exclusive discretion, may
terminate this Agreement, or suspend access to the License Property while repairs
are underway, or allow the Licensee to relocate the art wall within the aCTA right-
of-way at the sole cost and expense of the Licensee,
2. The Licensee agrees to execute and deliver to SCRRA, prior to commencing any
work within the rail right-of-way, SCRRA 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 (Right-of-Entry agreement) and SCRRA Form No. 37 (Rules
and Requirements for Construction on Railway Property). The Licensee shall be
responsible to make sure that the contractor has an approved and executed copy
of SCRRA Form No, 6 and delivered and secured approval of the insurance
required by the two exhibits attached to SCRRA Form NO.6 prior to the
contractor's entry on the rail right-of-way,
3. The Licensee agree to comply and to ensure that its contractor complies, at all
times when on the rail right-of-way, with the rules and regulations contained in
the current editions of the following documents which are "references"
incorporated in this document as if they were set in full in this paragraph. These
documents can be accessed through SCRRA's website
wwW.metrolinktrains.com. Sub-Sections "About Metrolink" and then "Public
Projects/Engineering" .
0 Right-of-Entry agreement, SCRRA Form No.6;
0 Rules and Requirements for Construction on Railroad Property, SCRRA
Form No. 37;
0 General Safety Regulations for Construction/Maintenance Activity on
Railway Property; and
0 SCRRA Engineering Standards.
4. In the event that any equipment or vehicle comes into contact with any portion of
the wall structure on or adjacent to License Property, Licensee will immediately
notify the Chief Dispatcher at (213) 259-6300 or a subsequently designated number
and will cooperate in the investigation of potential damage.
5. The Licensee, at its sole expense, shall provide and maintain suitable facilities for
draining the License Property and aCTA Property, so that storm and irrigation
water will not be impeded, obstructed, diverted or caused to back up, or overflow.
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ß. The Licensee shall not damage, destroy or interfere with any existing
encumbrances, licenses and rights (whether public or private), granted upon or
relating to the railroad right-of-way. The Licensee and/or Licensee's contractor(s)
shall contact SCRRA's signal department at (909) 392-8476 to mark signal and
communication cables and conduits. In case of signal emergencies or highway-rail
grade crossing problems, the contractor shall call SCRRA's 24-hour signal
emergency number 1-888-446-9721. Both numbers are subject to change.
7. 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).
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