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HomeMy WebLinkAboutNATIONAL RAILROAD PASSENGER - AMTRAK1 . INSURANC NO! l~l~UIRm we K M~Y PROC~EO (;1 RK OF COUNCIL DATE, 3- JJ-o~ ORIGINAL A-2006-027 1/6/06 DO NOT RECORD SITE LICENSE AGREEMENT BETWEEN THE CITY OF SANTA ANA AND NATIONAL RAILROAD PASSENGER CORPORATION THIS LICENSE AGREEMENT ("Agreement") is made and entered into this 30th day of June, 2005, by and between the City of Santa Ana, a charter city and municipal corporation, duly organized and exiting under the constitution and laws ofthe State of California, herein referred to as "Licensor", and National Railroad Passenger Corporation, herein referred to as "Licensee". RECITALS: A. The City of Santa Ana desires to provide passenger train transportation services at The Depot at Santa Ana, and desires to contract for such services with Licensee. B. Licensee represents that it is qualified to provide such services to City. In undertaking the performance of this Agreement, Licensee represents that it is knowledgeable in its field and that any service performed under this Agreement will be performed in compliance with all applicable standards ofInterstate Commerce Commission and United States Department of Transportation and include all required City, County, and State licenses, as applicable for Licensee. NOW THEREFORE, in consideration of the respective and mutual covenants and promises hereinafter contained and made, and subject to all terms and conditions hereof, the parties hereto agree as follows: ARTICLE 1 - TERM OF LICENSE Section 1.01 License Area and Use (a) Licensor owns the real property described in Exhibit "A" attached hereto and made a part hereof (the "Property"), commonly know as The Depot at Santa Ana located at 1000 East Santa Ana Boulevard, Santa Ana, California. Licensor grants to Licensee the privilege of a personal, non- exclusive, revocable license ("License") to encroach upon the "License Area", as herein described and shown in general in Exhibit "B", attached hereto and incorporated herein by reference, ("License Area") for the purpose of accommodating a train transportation Company including its business operations and for no other purpose. (b) The right and permission of Licensee is subordinate to the prior and paramount right of Licensor to use the Property in its entirety for public , 1/6/06 DO NOT RECORD purposes to which it presently is and may, at the option of Licensor, be devoted. Licensee undertakes and agrees to use the License Area and to exercise this License at all times in such manner as will not unreasonably interfere with the full use and enjoyment of the Property by Licensor. (c) Licensee hereby acknowledges that title to the Property is vested in Licensor and agrees never to assail or resist the same, and further agrees that Licensee's use and occupancy of License Area shall be referable solely to the permission herein given. (d) As a covenant to this Agreement, Licensee shall adhere to and comply with all responsibilities enumerated in Rider I, attached hereto and incorporated herein. Section 1.02 Term (a) The term of the Agreement for the License Area ("Term") shall be FIVE years (5) commencing on Julv I, 2005 ("Commencement Date") with three (3) one-year extensions with the same terms and conditions contained herein, upon agreement of both parties. Earlier termination of this License shall be in conformance with Section 5.02. (b) Licensee may terminate this Agreement by giving thirty (30) days written notice to Licensor that Licensee's rail service will either relocate or terminate. Section 1.03 Compensation/Consideration (a) Upon the Commencement Date, Licensee shall pay to Licensor monthly compensation in the amount of $2600.00 per month ("Compensation") for use of the License Area. Compensation will be due upon execution of this Agreement and thereafter on or before the lOth of each month, payable to "The City of Santa Ana" and remitted to: The Depot at Santa Ana, 1000 East Santa Ana Blvd., Suite 108, Santa Ana, CA 9270 I. Licensee's monthly compensation payments shall be subject to an automatic annual adjustment of I % per year; payable the 2nd and 4th years of the license term. Should the options be exercised, the annual adjustments shall continue at I % per year, and the increases shall be paid the 6th and 8th years of the extended term. Said adjustments shall not cause the Compensation to exceed the then current market rent for similar leased space of a similar size and location. (b) For any Renewal Term beyond the Term, Licensee shall pay the then current compensation, increased by three percent (3%) annually. 2 1/6/06 DO NOT RECORD (d) Any holding over after the expiration of the Term or Renewed Term, with the consent of Licensor, shall be construed to be an extension from month to month at compensation to be agreed upon by the parties and shall otherwise be consistent with the conditions herein specified, so far as applicable. Section 1.04 RESERVED Section 1.05 Non-Possessory Interest Licensor retains full possession of the License Area and Licensee will not acquire any interest temporary, permanent, irrevocable, possessory or otherwise by reason of this Agreement, or by the exercise of the permission given herein. Licensee will make no claim to any such interest. Any violation of this provision will immediately void and terminate this Agreement. Section 1.06 Non-Recording Neither party shall record this Agreement. ARTICLE 2 - TAXES AND UTILITIES Section 2.01 Taxes As Applicable, to Licensee, Licensee is responsible for all taxes on the Property, which includes the License Area. Section 2.02 Utilities Licensor shall pay for all electricity, gas, water sewer and janitorial services furnished to the License Area for the use, operation and maintenance of said Area during the Term of this Agreement, or any extension thereof, and for the removal of garbage and rubbish from the License Area during the Term of the Agreement, or any extension thereof. ARTICLE 3 - IMPROVEMENTS AND ACCESS Section 3.01 Licensee's Area (b) Each party shall provide access to the License Area to the other party, and its employees, agents, contractors and subcontractors, at reasonable times. Except in the case of emergencies, Licensor shall give Licensee twenty- four (24) hours notice prior to entry into the License Area. Licensor shall not enter the License Area unless accompanied by Licensee. 3 1/6/06 DO NOT RECORD (c) Licensee shall, at its sole cost and expense, maintain and repair the License Area including, but not limited to, the removal of all trash, debris, graffiti, as well as any special intensive cleaning. If Licensee causes any damage to the Property, to the License Area or to access roadways or other nearby facilities, it shall properly repair same as specified by Licensor. (d) Licensee shall surrender the License Area in good and clean condition, less ordinary wear and tear. (e) Quiet Enjoyment. Upon Licensee paying the license fee reserved hereunder, and observing and performing all of the covenants, conditions, and provisions on Licensee's part to be observed and performed hereunder, Licensee shall have quiet possession of its License Area for the entire term hereof, subj ect to all the provisions of this License. Section 3.02 Liens Licensee will not permit any mechanics' or materialmens' or other liens to stand against the License Area by reason of any use or occupancy by Licensee, or any person claiming under Licensee. ARTICLE 4 - INDEMNITY AND INSURANCE Section 4.01 Indemnification, Defense, Hold Harmless a. Licensee shall indemnify, defend, and hold harmless Licensor from and against any and all liability, loss, damage, expense, costs (including reasonable costs and fees oflitigation) due to bodily injury, including death, to any person, or loss or damage (including loss of use) to any property caused by the sole and direct willful misconduct of Licensee, its employees or agents, in connection with this License. b. Licensee shall cover its indemnity obligations under its corporate-wide self insurance program, a L""UG.a. v[ intl6mniH~ati8H shall be provided to Licensor. letter of self lnsurance c. Licensee shall cause all of its subcontractors who perform work at the License Area to add Licensor and Licensee as additional insureds on subcontractors' general and auto liability insurance policies. d. To the extent permitted by law, Licensor shall indemnify, defend and hold harmless Licensee, its officers, officials, employees and agents from and against any and all liability, loss, damage, expense, costs (including reasonable costs and fees oflitigation) due to bodily injury, including death, to any person, or loss or damage (including loss of use) to any property, caused by the willful misconduct of Licensor, its officers, officials, directors, its employees or agents in connection with this License, except for any loss or damage or portion of loss that is caused by the willful misconduct of Licensee. 4 1/6/06 DO NOT RECORD e. Licensee shall maintain the foregoing insurance coverage in force throughout the term of this Agreement. The requirement for carrying the foregoing insurance coverage shall not derogate from the provisions for indemnification of Licensor by Licensee under the Agreement. . ARTICLE 5 - TERMINATION AND DEFAULT Section 5.01 Termination in the Event of Casualty or Condemnation (a) In the event of any damage, destruction or condemnation of the License Area, which renders the License Area unusable or inoperable in either party's judgment, Licensee shall have the right, but not the obligation, to terminate the Agreement with respect to the subject License Area by giving written notice to Licensor within thirty (30) days after such damage, destruction or condemnation. If, by virtue of such casualty or condemnation, either party determines that the License Area is no longer adequate for Licensee to continue its operations, or any repairs to the License Area have not been completed or cannot reasonably be completed within sixty (60) days from the date of the damage, destruction or condemnation, this License Agreement will become null and void. (b) In the event of condemnation, unless Licensee is allowed by the condemning authority to continue its operations in the License Area, this Agreement shall terminate as of the date title to the Property vests in the condemning authority or Licensee is required to cease its operations, whichever is earlier. If any property described herein or hereinafter added hereto is taken in eminent domain, the entire award shall be paid to Licensor. ( c) In the event of a casualty or condemnation, Licensee shall be entitled to an abatement of compensation payments. Section 5.02 Termination This Agreement may be terminated on thirty (30) days prior written notice as follows: (I) by either party upon an event of default of any covenant or term hereof by the other party, which default has been noticed and is not cured within 30) days of receipt of written notice of default or longer if such party has commenced to cure the default within the thirty days, but cannot complete the cure within that time, or (2) by Licensee if Licensee is unable to occupy and utilize the License Area due to any action of the Interstate Commerce Commission or the Department of Transportation or ceases operation at the License Area. 5 1/6/06 DO NOT RECORD ARTICLE 6 - ASSIGNMENT, ABANDONMENT, DEF AUL T, INSOLVENCY Section 6.01 Assignment Licensee is only permitted to assign the rights and responsibilities under this Agreement to any entity whose management and operation is controlled by or under common control with Licensee, or if such assignment is due to or arises out of any judicial or legislative action or mandate. Evidence of such judicial or legislative action or mandate shall be provided immediately to the Licensor. Section 6.02 Default by Licensee The failure of Licensee to perform substantially or keep or observe any ofthe terms, covenants and conditions which it is obligated to perform, keep or observe under this License Agreement within thirty (30) days after written notice from Licensor identifying the specific term, covenant or condition and requesting Licensee to correct or commence correction of any such deficiency or default or such longer time period if the correction cannot be completed within said thirty (30) days, provided that Licensee has commenced such correction, shall constitute an "Event of Default" by Licensee. Section 6.03 Rights of Licensor after an Event of Default by Licensee a. If an Event of Default by Licensee occurs, as provided hereinabove, Licensor shall have the right (unless otherwise provided in the termination notice) in addition to any rights of Licensor at law or in equity and after written notice to the Licensee, to terminate this License Agreement and enter and take possession of the License Area and expel, oust and remove any and all parties who may occupy any portion of the License Area and any and all goods and chattels belonging to Licensee which have been found in or upon the License Area, all in accordance with applicable laws and procedures. b. In case of any termination, re-entry, and/or dispossession by the Licensor in accordance with lawful proceedings, the compensation payment shall become due thereupon and be paid up by Licensee to the time of such re-entry, dispossession and/or expiration. Section 6.04 Cumulative Remedies The remedies given to Licensor in this Agreement shall not be exclusive, but shall be cumulative and in addition to all remedies now and hereafter allowed by law or elsewhere provided in this Agreement. 6 1/6/06 DO NOT RECORD Section 6.05 Waiver of Breach The waiver by Licensor of any breach by Licensee of any ofthe provisions of this Agreement shall not constitute a continuing waiver or a waiver of any subsequent breach by Licensee either ofthe same or another provision ofthis Agreement. ARTICLE 7 -HAZARDOUS MATERIALS Section 7.01 At the time of execution ofthis License, Licensor warrants that the License Area is clean and contains no known hazardous materials. Licensee represents and warrants that it will comply with all applicable environmental laws during the term of this License; its use of the License Area herein will not generate any hazardous substance, and it will not store or dispose on the License Area nor transport to or over the License Area any hazardous substance except for ordinary use of cleaning products or for business related machines. Licensee further agrees to clean-up and remediate any hazardous substance on the License Area placed or brought there by Licensee, and hold Licensor harmless from and indemnify Licensor against any release of any such hazardous substance and any damage, loss, or expense or liability resulting from such release including all attorneys' fees, costs and penalties incurred as a result thereof except any release caused by the negligence of Licensor, its employees or agents. "Hazardous substance" shall be interpreted broadly to mean any substance or material defined or designated as hazardous or toxic waste, hazardous or toxic material, hazardous or toxic or radioactive substance, or other similar term by any federal, state or local environmental law, regulation or rule presently in effect or promulgated in the future, as such laws, regulations or rules may be amended from time to time; and it shall be interpreted to include, but not be limited to, any substance which after release into the environment will or may reasonably be anticipated to cause sickness, death or disease. ARTICLE 8 - MISCELLANEOUS Section 8.01 Force Majeure - Unavoidable Delays Should the performance of any act required by this Agreement to be performed by either Licensor or Licensee be prevented or delayed by reason of an act of God, strike, lockout, labor troubles, inability to secure materials, restrictive governmental laws or regulations, or any other cause except financial inability not the fault of the party required to perform the act, the time for performance of the act will be extended for a period equivalent to the period of delay, and performance of the act during the period of delay will be excused, provided, however, that nothing contained in this section shall excuse the prompt payment of compensation by Licensee as required by this Agreement or the performance of any act rendered difficult solely because of the financial condition of the party, Licensor or Licensee, required to perform the act. 7 1/6/06 DO NOT RECORD Section 8.02 Notice Any written notice or required submittals, given under the terms of this Agreement, shall be delivered personally, or mailed, certified mail, postage prepaid, addressed to the party concerned as follows: To Licensor: Clerk ofthe City Council City of Santa Ana 20 Civic Center Plaza (M-30) P.O. Box 1988 Santa Ana, CA 92702-1988 Telefacsimile (714) 647-6956 With courtesy copies to: Executive Director of the Community Development Agency City of Santa Ana 20 Civic Center Plaza (M-25) P.O. Box 1988 Santa Ana, CA 92702 Telefacsimile (714) 647-6549 and, City Attorney City of Santa Ana 20 Civic Center Plaza (M-29) P.O. Box 1988 Santa Ana, CA 92702 Telefacsimi1e (714) 647-6515 To Licensee: Proj ect Director National Railroad Passenger Corporation 530 Water Street, 5th Floor Oakland, CA 94607 And National Railroad Passenger Corporation 30th Street Station, 4th Floor 19104 Attn: V.P. Real Estate Development 8 1/6/06 DO NOT RECORD A party may change its address by giving notice in writing to the other party. Thereafter, any notice, tender, demand, delivery, or other communication shall be addressed and transmitted to the new address. If sent by mail, any notice, tender, demand, delivery, or other communication shall be effective or deemed to have been given three (3) days after it has been deposited in the United States mail, duly registered or certified, with postage prepaid, and addressed as set forth above. If sent by telefacsimile, any notice, tender, demand, delivery, or other communication shall be effective or deemed to have been given twenty-four (24) hours after the time set forth on the transmission report issued by the transmitting facsimile machine, addressed as set forth above. For purposes of calculating these time frames, weekends, federal, state, County or City holidays shall be excluded. Section 8.03 Contract Administrator The Executive Director of the Community Development Agency, or his/her designee, shall be City's License Administrator for this Agreement and all approval and notices required to be given herein shall be so directed and addressed. Section 8.04 Compliance with Laws Licensee shall at Licensee's own cost and expense comply with all statutes, ordinances, regulations, and requirements of all applicable federal governmental entities, including federal and state, county and municipal, relating to Licensee's use and occupancy of the License Area and Licensee's Facilities whether such statute, ordinances, regulations, and requirements be now in force or hereinafter enacted. Section 8.05 Binding on Heirs and Successors This Agreement shall be binding on and shall inure to the benefit of the heirs, executors, administrators, successors, and assigns ofthe parties hereto. The provisions of this Section shall not be deemed to be a waiver of any of the conditions regarding assigrunent set forth herein. Section 8.06 Partial Invalidity Should any provision of this Agreement be held by a court of competent jurisdiction to be either invalid, void, or unenforceable, the remaining provisions of this Agreement shall remain in full force and effect unimpaired by the holding, so long as the reasonable expectations of the parties hereto are not materially impaired. Section 8.07 Waste or Nuisance Licensee shall not commit or permit the commission by others of any waste on the License Area. Licensee shall not maintain, commit, or permit the maintenance or commission of any nuisance as defined in Section 3479 and/or Section 3480 of the 9 1/6/06 DO NOT RECORD California Civil Code on the Premises or License Area; and Licensee shall not use or permit the use of the License Area for any unlawful purpose. Section 8.08 Repairs Licensee shall be required to make any repairs to the License Area occurring from damages caused by Licensee, its employees, agents, contractors, and subcontractors. Section 8.09 Time of Essence Time is expressly declared to be of the essence in this Agreement. Section 8.10 Governing Law This Agreement has been executed and delivered in the State of California and the validity, interpretation, performance, and enforcement of any of the clauses of this Agreement shall be determined and governed by the laws ofthe State of California. Both parties further agree that Orange County, California and federal courts therein, shall be the venue for any action or proceeding that may be brought or arise out of, in connection with or by reason of this Agreement. Section 8.11 RESERVED. Section 8.12 State of Emergency/Public Necessity Due to the fact that The Depot has been designated a Homeland Security Evacuation Center, upon the declaration of a state of emergency/public necessity, Licensor may give immediate notice in writing to Licensee to suspend or revoke normal operation under this Agreement without liability to Licensee when the emergency/public necessity so requires, or to suspend operation immediately hereunder temporarily in the event of such public emergency, as may be determined by the City Manager. Such suspension will terminate as soon as the public necessity or emergency no longer exists. Licensee shall be compensated for any time of suspended use or operation by Licensor in the form of an equal amount oftime added onto the term of the License by Licensor (i.e. Licensee suspends operation for 2 months due to state of emergency, License is extended an additional 2 months). Section 8.13 Conflict of Interest Licensee covenants that it presently has no interest and shall not have interests, direct or indirect, which would conflict in any manner with performance of this License Agreement specified herein. Section 8.14 RESERVED. 10 1/6/06 DO NOT RECORD Section 8.15 Exclusivity and Amendment This Agreement constitutes the entire agreement and understanding between Licensor and Licensee respecting the License Area. the licensing ofthe License Area to Licensee, or the License Term herein specified, and correctly sets forth the obligations of Licensor and Licensee to each other as of its date. Any agreements or representations respecting the License Area or their licensing between the parties not expressly set forth in this instrument are null and void. This Agreement or any part of it may not be changed, altered, modified, limited or extended orally or by any Agreement between the parties, unless such Agreement is expressed in writing, signed and acknowledged by Licensor and Licensee, or their successors in interest. Section 8.16 Captions Captions used in this Agreement are for ease ofreference only and shall not affect the construction or interpretation ofthis Agreement. Section 8.17 Non-Discrimination Licensee shall not discriminate because of race, color, creed, religion, sex, marital status, sexual orientation, age, national origin, ancestry, or disability, as defined and prohibited by applicable law, in the recruitment, selection, training, utilization, promotion, termination or other employment related activities. Licensee affirms that it is an equal opportunity employer and shall comply with all applicable federal, state and local laws and regulations. BALANCE OF PAGE INTENTIONALLY LEFT BLANK SIGNATURES ON NEXT PAGE 11 1/6/06 DO NOT RECORD IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by and through their authorized officers the day, month and year first written above. ATTEST: P A RICIA E. HEALY Clerk of the Council APPROVED AS TO FORM: Joseph W. Fletcher, City Attorney ~ ' /.,- i ZJ;la~- Y: Lisa E. Storck Assistant City Attorney REC6!iF~~;;;;L' Patricia C. Whitaker, Executive Director Community Development Agency CITY OF SANTA ANA f24;tL- DAVID N. REAM City Manager LICENSEE: UN~I~;~ C . atlOna al roa assenger orporatlOn By: Vice President Real Estate Development 12 " 1/6/06 DO NOT RECORD RIDER 1 RESPONSIBILITIES OF LICENSEE I. Licensee shall conform to all reasonable requirements set forth by Licensor. 2. Licensee shall occupy Suite 101 ONLY. 3. Licensee shall pay for all improvement costs, including all approved signage for its License Area. RIDER 2 PUBLIC ADDRESS SYSTEM I. Use of Public Address System is a privilege and will be conducted as such. Licensor requires that Licensee take all necessary steps to maintain equipment in good repair. 2. Licensee must make all announcements first in English, followed by any other language that its business requires. 3. All announcements will be made in a clear, unhurried, well-enunciated voice. 4. Before use, make sure no one else is starting an announcement. "Stepping on" another's voice transmissions is not allowed. 5. Begin announcement with: "This is an [ INSERT] your company name announcement". 6. Any damage to the Public Address System components housed in Suite # 101 will be repaired at Licensee's sole expense. INITIALS OF EACH PARTY EVIDENCING P / AGREEMENT TO THESE TERMS:LICENSOR~ / LICENSEE (.1'8 13 , " L IU . l$-' '0". ~ lit t ]~ Q 1111; ;hi rl1 ., 'I!' . ~ .a ~ '^ , ~ !-I , .. ~ ~-----.;... -- = I ~ = I !-I ~ EXHIBIT A .' _L L' . : _~_ __I!._i11 ... .. - .. ~' ______...!'I-_ III ' , .__.._.. _.,_. 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