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HomeMy WebLinkAboutORANGE COUNTY TRANSPORTATION AUTHORITY LICENSE AGREEMENT (2) - 2009!fJSURANCE NOT RE~~UiREG tNORK MAY PROCEED CLERK OF COUNCI!_ RATE U,..21~4~ ~~` COPY FILE: OC-215 ORANGE COUNTY TRANSPORTATION AUTHORITY LICENSE AGREEMENT N-2009-030 This LICENSE AGREEMENT ("Agreement") is made and entered into as of February 20, ' 2009 by and between the ORANGE COUNTY TRANSPORTATION AUTHORITY, a public ~, ~j entity ("OCTA"), and CITY OF SANTA ANA ("Licensee"), upon and in consideration of the ~ agreements, covenants, terms and conditions below: ,~ ~ ~ PART 1. -BASIC LICENSE PROVISIONS _ `~ ~' 1. Description of License Property: A portion of the OCTA railroad right of way located from Lincoln Avenue to Santiago Creek, in Santa Ana, CA at Milepost 173.60 shown on Exhibit "A" attached. 2. Use of License Property: Landscaping and no other uses. 3. Commencement Date: This Agreement is made effective as of the date on which all parties have signed this Agreement; __ 4. Term: Month-to-Month beginning on the Commencement Date. 5. License Fees: A. Base License Fee:Waived B. Additional License Fee: One time fee: $500.00 6. Insurance Requirements: Insurance requirements are detailed in Section 16, Insurance, page 8, attached hereto and incorporated herein by reference. 7. OCTA's Address: ORANGE COUNTY TRANSPORTATION AUTHORITY 550 S. Main Street P. O. Box 14184 Orange, CA 92863-1584 8. Licensee's Address: CITY OF SANTA ANA 20 Civic Center Plaza Santa Ana, CA, 92701 9. Facility: Landscaping, trees, irrigation, water meter, fence and swing gate Page 1 of 12 FILE: OC-215 The foregoing Basic License Provisions and the General License Provisions set forth in attached Part II are incorporated into and made part of this Agreement. PART II -GENERAL LICENSE PROVISIONS 1. License/Term. License. OCTA hereby grants to Licensee anon-exclusive license to use the real property owned by OCTA described on the attached Exhibit "A" and incorporated herein by reference, and described 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 "Facili "), for the purposes described in Item 2 of the Basic License Provisions, together with rights for access and entry onto the License Property as necessary or convenient for the use of the Facility. In connection with this license, Licensee, its employees, agents, customers, visitors, invitees, licensees and contractors (collectively, "Licensee's Parties"), subject to the provisions hereof, may have reasonable rights of entry and access onto the License Property. The License Property, adjoining real property (or any interest therein) of OCTA and personal property of OCTA located thereon shall hereinafter collectively be referred to as OCTA Property ("OCTA Property"). 1.2 Term of Agreement. The term (`Term") of this Agreement shall commence on the "Commencement Date" specified in Item 3 of the Basic License Provisions. Unless a specific term of this Agreement is filled in at Item 4 of the Basic License Provisions, this Agreement shall continue in full force and effect on a month-to-month basis as provided in Item 4 of the Basic License Provisions until terminated by either party on thirty (30) days' prior written notice. If Item 4 of the Basic License Provisions provides for a specific term, then this Agreement shall be a license for the term specified in said Item 4; provided, however, that OCTA shall have the absolute right to terminate this Agreement prior to the date specified in Item 4 in its sole discretion by delivering thirty (30) days' prior written notice to Licensee. 1.3 Condition of Premises. Licensee acknowledges that it has inspected and accepts the License Property in its present condition as suitable for the use for which this license is 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 Base License Fee specified in Item 5 of the Basic License Provisions, as such amount may be adjusted as set forth in Section 2.2, and the Additional License Fee specified in Item 5 of the Basic License Provisions. The one time Additional License Fee and the first month's or year's, as the case may be, Base License Fee are due and payable upon execution Page 2 of 12 FILE: OC-215 of this Agreement. Thereafter, the Base License Fee, as such fee may be adjusted pursuant to the provisions of Section 2.2, shall be due and payable, without demand, on or before one month or year, as the case may be, after the Commencement Date and in each month or year, as the case may be thereafter. The Base License fee for any fractional period at the end of the Term shall be prorated on a daily basis and shall be reimbursed to Licensee. If the Agreement is terminated, and the Licensee is nat in breach of the Agreement at such time, the Base License fee for any fractional period shall be prorated on a daily basis and shall be reimbursed to Licensee. 2.2 License Fee Adjustment. 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 and any and all applicable laws, rules and regulations (including the OCTA's rules and regulations), and in a manner which (i) 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 Construction Work must be carried out pursuant to work plans approved in writing by OCTA. In addition, Licensee shall provide OCTA and all holders of underground utility facilities located within the License Property with at least 10 calendar days' written notice prior to commencement of any Work on the License Property or the Facility, except in cases of emergency, in which event Licensee shall notify OCTA's representative personally or by phone prior to commencing any Construction Work. Unless otherwise requested by OCTA, upon completion of any Construction Work, Licensee shall restore the OCTA Property to its condition immediately preceding the commencement of such Construction Work. 5. Contractors--Approval and Insurance. Any contractors of Licensee performing Work on the Facility or the License Property shall first be approved in writing by OCTA. With respect to such Work, Licensee shall, at its sole cost and expense, obtain and maintain in full force and effect, throughout the term of such Work, insurance, as required by OCTA, in the amounts and coverages specified on, and issued by insurance companies as described Section 16, attached hereto and incorporated herein by reference. Additionally, Licensee shall cause any and all of its contractors and subcontractors which may (a) be involved with such Work, or (b) may, for any reason, need to enter onto the License Property, to obtain and maintain in full force and effect during the Term of this Agreement, or throughout the term of such Work (as applicable), insurance, as required by OCTA, in the amounts and coverages specified on, and issued by insurance companies as described in Section 14, attached hereto and incorporated herein by reference. OCTA reserves the right, throughout the Term of this Agreement, to review and Page 3 of 12 FILE: OC-215 change the amount and type of insurance coverage it requires in connection with this Agreement on the Work to be performed on the License Property. 6. Reimbursement. Licensee agrees to reimburse OCTA for all reasonable costs and expenses incurred by OCTA in connection with Construction Work on or maintenance of the License Properly or the Facility, including, but not limited to, costs incurred by OCTA in fumishing any materials or perfomling any labor, reviewing Licensee's Work plans and/or inspecting any Construction Work, installing or removing protection beneath or along OCTA's tracks, fumishing 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. 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 pem~it to be fi{ed 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 Construction 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 any time to post and maintain on the OCTA Property and on the Licensed 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 during the Term of this Agreement and shall perform all maintenance and clean-up of the License Property and the Facility as necessary to keep the License Property and the Facility in good order and condition, to OCTA's satisfaction and in accordance with applicable city codes. Licensee shall be responsible for any citations issued by any agency having jurisdiction as a result of Licensee's failure to comply with local codes. If any portion of the OCTA Property, including improvements or fixtures, suffers damage by reason of the access to or use of the License Property, by Licensee, Licensee's Parties or by Licensee's partners, officers or directors, including but not limited to damage arising from any test or investigations conducted upon the License Property, Licensee shall, at its own cost and expense, immediately repair all such damage and restore the OCTA Property to as good a condition as before such cause of damage occurred. Repair of damage shall include, without limitation, regrading and resurfacing of any holes, ditches, Page 4 of 12 FILE: OC-215 indentations, mounds or other inclines created by an excavation by Licensee or Licensee's Parties. 9. Landscaping and Protective Fencing. If required by OCTA, Licensee, at its sole cost and expense, shall install barrier fencing and/or landscaping to shield the railroad track area from public access and/or the Facility from public view. OCTA shall have the right to review and approve fencing and/or landscaping plans prior to installation. AI! fencing and/or landscaping work shall be done in accordance with the provisions of Sections 4 and 5 above and wilt 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 anytime abandon the use of the Facility or the License Property, or any part thereof, or fail at any time for a continuous period of ninety (90} days to use the same for the purposes contemplated herein, then this Agreement shall terminate to the extent of the portion so abandoned or discontinued, and in addition to any other rights or remedies, OCTA shall immediately be entitled to exclusive possession and ownership of the portion so abandoned or discontinued, without the encumbrance of this Agreement. OCTA, at its option, may remove any improvements remaining on the abandoned property, at Licensee's expense. 12. Breach. Should Licensee breach, or fail to keep, observe or perform any agreement, covenant, term or condition on its part herein contained, then, in addition to any other available rights and remedies, 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, or (b) with or without written notice or demand, immediately terminate this Agreement and at any time thereafter, recover possession of the License Property or any part thereof, and expel and remove therefrom Licensee or any other person occupying the License Property, by any lawful means, and again repossess and enjoy the License Property and the Facility, without prejudice to any of the rights and remedies that OCTA may have under this Agreement, at law or in equity by reason of Licensee's default or of such termination. 13. Surrender. Upon termination of this Agreement, unless otherwise requested in writing by OCTA to leave all, or any portion of, the Facility in place on OCTA Property prior to the date of termination, Licensee, at its own cost and expense, shall immediately remove the Facility and restore the OCTA Property as nearly as possible to the same state and condition as existed prior to the construction, reconstruction or installation of said Facility. Should Licensee fail to comply with the requirements of the preceding sentence, OCTA may at its option (a) perform the same at Licensee's expense, which costs Licensee agrees to pay to OCTA on demand, or (b) assume title and ownership of said Facility. No termination hereof shall release Licensee Page 5 of 12 FILE: OC-215 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 Properly is restored. 14. Indemnification. Except for OCTA's sole negligence, Licensee shall indemnify, defend and hold harmless OCTA, its officers, directors, employees and agents from and against any and all claims (including attorneys' fees and reasonable expenses for litigation. or settlement) for any loss or damages, bodily injuries, including death, damage to or loss of use of property caused by the negligent acts,. omissions or willful misconduct by Llcensee, its officers, directors, employees, agents, subcontractors or suppliers in connection with or arising out of the performance of this Agreement. Except for CITY's sole negligence, Licensor shall indemnify, defend and hold harmless CITY, its officers, directors, employees and agents from and against any and all claims (including attorneys' fees and reasonable expenses for litigation or settlement) for any loss or damages, bodily injuries, including death, damage to or loss of use of property caused by the negligent acts, omissions or willful misconduct by Licensor, its officers, directors, employees, agents, subcontractors or suppliers in connection with or arising out of the performance of this Agreement. The foregoing indemnity shall be effective regardless of any negligence (whether active, passive, derivative, joint, concurring or comparative) on the part of Indemnitees, unless caused solely by the negligence or willful misconduct of Indemnitees; shall survive termination of this Agreement; and is in addition to any other rights or remedies which Indemnitees may have under the law or under this Agreement. Upon request of OCTA, Licensee shall provide insurance coverage for possible claims or losses covered by the indemnification and defense provisions of this Agreement. Claims against the Indemnitees by Licensee or its Personnel shall not limit the Licensee's indemnification obligations hereunder in any way, whether or not such claims against Indemnitees may result in any limitation on the amount or type of damages, compensation, or benefits payable by or for Licensee or its Personnel under workers' compensation acts, disability benefit acts or other employee benefit acts or insurance. 15. Assumption of Risk and Waiver. To the maximum extent allowed by law, Licensee assumes any and all risk of loss, damage or injury of any kind to any person or property, including, without limitation, the Facility, the License Property and any other property of, or under the control or custody of, Licensee, which is on or near the License Property. Licensee's assumption of risk shall include, without limitation, loss or damage caused by defects in any structure or improvement 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 Page 6 of 12 FILE: OC-215 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 which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor. 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. Licensee shall provide the following coverage: 1. Commercial General Liability, to include Products/Completed Operations, Independent Contractors', Contractual Liability, and Personal Injury Liability with a minimum of $ 2,000,000. of coverage. 2. Automobile Liability Insurance with combined single limits of a minimum of $ 1,000.000. 3. Workers' Compensation with limits as required by the State of California; with a waiver of subrogation rights; 4. Employers' Liability with limits of a minimum of $1,000,000; and B. Proof of such coverage, in the form of a letter of self-insurance evidencing sufficient assests to meet the aforementioned requirements or an insurance company issued policy endorsement and abroker-issued insurance certificate, must be received by OCTA within ten (10) calendar days from the date of execution of the Agreement; with the Orange County Transportation OCTA, its officers, directors, employees and agents designated as additional insurers. Furthermore, OCTA reserved the right to request certified copies of all related insurance policies. C. Licensee shall include on the face of the certificate of Insurance the Agreement Number ;and, attention to the Right of Way Department. 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 Page 7 of 12 FILE: OC-215 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. Licensee shall indemnify, defend (by counsel acceptable to OCTA) and hold harmless the Indemnitees (as defined in Section 14) from and against all loss, liability, claim, damage, cost or expense (including without limitation, any fines, penalties, judgments, litigation expenses, attorneys' fees, and consulting, engineering, and construction fees and expenses) incurred by Indemnitees as a result of (a) Licensee's breach of any prohibition or provision of this Section or (b) any release of Hazardous Materials upon or from the Facility or the License Property or contamination of the Licensed Property or adjacent 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 License Property, the OCTA Property and/or any adjacent property, whether or not owned by OCTA, Licensee, at its sole expense, shall promptly take all actions necessary to clean up all such affected property and to return the affected property to the condition existing prior to such release or contamination, to the satisfaction of OCTA and any governmental authorities having jurisdiction thereover. Upon the termination of this Agreement at any time and for any reason, Licensee shall, prior to the effective date of such termination, clean up and remove all Hazardous Materials in, on, under and/or about the License Property or 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, its successors and assigns, to use the OCTA Property in the exercise of its powers and in the performance of its duties, or for any other purpose including but not limited to those as a public transportation body. Accordingly, there is Page 8 of 12 FILE: OC-215 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 licenses required by any governmental authority for its use of the License Property and the Facility, at its sole cost and expense. 22. Condemnation. In the event all or any portion of the License Property shall be taken or condemned for public use (including conveyance by deed in lieu of or in settlement of condemnation proceedings), Licensee shall receive compensation (if any) from the Condemnor only for the taking and damage to the Facility. Any other compensation or damages arising out of such taking or condemnation awarded to Licensee are hereby assigned by Licensee to OCTA. 23. Markers. Project markers in form and size satisfactory to OCTA, identifying the Facility and its owners, will be installed and constantly maintained by and at the expense of Licensee at such locations as OCTA shall designate. Such markers shall be relocated or removed upon request of OCTA without expense to OCTA. Absence of markers in or about 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. Page 9 of 12 FILE: OC-215 24.3 Goveminq 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. 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 Assignment. This Agreement and the license granted hereunder are personal to the Licensee. Licensee shall not assign or transfer (whether voluntarily or involuntarily) this Agreement in whole or in part, or permit any other person or entity to use the rights or privileges granted hereunder, without the prior written consent of OCTA, which may be withheld in OCTA's sole and absolute discretion, 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 Attorney's Fees. In any judicial or arbitration proceeding involving performance under this Agreement, or default or breach thereof, the prevailing party shall be entitled to its reasonable attorney's fees and costs. 24.11 Nondiscrimination. Licensee certifies and agrees that all persons employed and any contractors retained, by either Licensee or Licensee's affiliates, subsidiaries, or holding companies, with respect to the License Property, are and shall be treated equally without regard Page 10 of 12 FILE: OC-215 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 Unnah 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 OCTA asks licensee to vacate the property, then licensee is -not entitled to any relocation benefits under this agreement or by virtue of state or federal law. Further, licensee agrees it is not entitled to loss of good will or moving expenses from OCTA. 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. 24.19 Additional Provisions. Those additional provisions set forth in Exhibits "A", "B", & "C", if any, are hereby incorporated by this reference as if fully set forth herein. Page 11 of 12 FILE: OC-215 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 COUNTY TRANSPORTATION AUTHORITY By: Kia Mortazavi, Executive Director, Development Date: APPROVED AS TO FORM: By: Kennard R. Smart, Jr. General Counsel LICENSEE C1TY OF SANTA ANA By: Date: ~ -Iii - ~ej APPROVED AS TO FORM: By: 'A APPROVED AS TO FORM: ~1 By: ~~ City Clerk Page 12 of 12 EXHIBIT "A" LICENSE PROPERTY m Zz Oy O i n n' D ~" a» y m ~ , > ~ > ~ ~ ~ 3 - ag ' y x x- s to ( n ~ ~ = ~ ' ~ w Z ~ O a ~ ~ [ il ~ Z {~ m m ~ ~ ~ b ~ ~ pl ~ ~ a ? z ro o yo m ~ N ~ y ~ m ~ D < o a' w m " m ~, ~ ' ~~ ~ ~ a <- T - ~p N ~ m T ° o b" , m ~ o Z v O ~ ~ C 9 m O C( ~J ~ m D$ D z= nQ gy m ~ > {~ G x = • S m ~ ppp ~ ~° ~0+ 1 a' 7 ~~C O~ u m Z ~~~ ~ v ' ~ A O o h ~ p ~ n -w b m m ~ . i o i ~ -~ o o ~ N Di d ~ m D m d ~ ~ .. mZ~ m .mac { ~~ {~~ ~~~ c~=~ m z cmn ~~ z x p ZO ~ NZ 'D n mn N nn .N.. O ~ ~ ~~ a z -{ m ~ ~ moo c a n -- r m -i a{ w 1 j { . k I H y J y~ X _~ t ~ ` ~~- ^^I ~ ~ W ~ ~ y / ~ ~ x ~ " ! ~ I ' a/ n n -+ ! I f Xl H 1 ! ~ 1 1 O 1 t ~ G~ ' I ! j ~ t ! { ' ! ! ! ~~ ~ ~ O ~ ~ W ~ ~ ~~ ! ' o ~ 1 o ° A 1 n / /! /! ~~77 DZ~ ~ / /! ~~A ;( J ~`I D~~ r /! Zm= r / ! < m° I l~ yy {2 / ~ ! ! ~m ! ! / mZ ~ ! ! / • ! I \` ; . / ` ~ / / ~ ~ / + ' ~ ~ / ~ / ! ~ W / / ! ~ / ~ ! o ~ / ! y a ' / ! / 6 ~ N/ ~ o o 7\ ~ 1. ~~ m z / `\\ nD` /~ N ~~ \\_ / DN r- ~~~~ ~ ~ ~~ \ /~ ~ ~ / ~~~ ° ` ~\ ! ~~~ am lV~ / ~°, o / ~ \~ x ~ / ~ / /' / i ~ ! / / ~\ R9 I X H ~ X y ti n m n ~-1 r a r? x y N ~ X W Q) W ~ m° 0 O .~' ~ r ~ ! ~~ ! / W o ~ ~ . ~ l O / ~/ / // ! / /! /f ~ //. n / ~~ ~ ) `C / /% ! /l ~ ~ /j ch 1, Q li ~~ 't ! ~~ m ~ k ! vl ' N ~j X -t i J y (1 ~ n n r a '~ ~ z 1 ~: /j m ~ ! ~ !! z° 2 ! o ~! v m ! _n !I cv ! Z /! ti ~ 'v /~ ~ !/ Q !f !! ~ ~ ! j~ a ~ .l ! !: ! ! 1! ~~ ti ny n O~ r ~ '- \ `~t// ~ ~ \ ~~ v ` ~~~~~ \ \ \ X 2 D n m Z U3 m V m FILE: OC-215 EXHIBIT "B" This License is subject to the following additional terms and conditions: 1. The Licensee agrees to execute and deliver to SCRRA, prior to commencing any work within the rail right-of--way, SCRRA Right of Entry Agreement (Form No. 6, sample attached as Exhibit C) and deliver and secure approval of the insurance required by the two exhibits attached to Form No. 6. If the Licensee retains a contractor to perform any work within the rail right-of--way, the Licensee shall incorporate in its contract documents SCRRA Form No.6 and SCRRA Rules and Requirements for Construction on Railway Property (Form No. 37). SCRRA's Right of Way Engineers Office can be reached at (213) 452-0353. 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. Licensee's contractor shall contact Martha Jimenez at (213) 452-0436 or via email at jimenezm@scrra.net to determine the necessary track safety requirements and for construction arrangements prior to any work to be done. No work may commence on railroad right of way until this training has been completed. 4. Licensee's contractors shall contact SCRRA's Maintenance of Way office at (909} 392- 4506 to arrange for flagging services a minimum of five working days prior to beginning work. Although every effort is made to accommodate your schedule, prior notification does not guarantee the availability of protective services for the proposed date of work. 5. Licensee or licensee's contractor shall be responsible for the location and protection of any and all surface, sub-surface, overhead lines and structures. 6. The contractor shall call SCRRA's signal department (909) 859-4100 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. 7. If SCRRA or OCTA shall deem it necessary in the future, to build additional track, tracks or other facilities in connection with the SCRRA railroad operation on the OCTA Property , at the request of SCRRA or OCTA, the Licensee shall modify, at its own expense, the proposed utility and/or roadway to conform to the rail line. EXHIBIT "C" TEMPORARY RIGHT-OF ENTRY AGREEMENT SCRRA FORM N0.6 SCRRA File No. SCRRA Project/Task No. Subdivision Mile Post Thomas Guide Location This Temporary Right-of--Entry Agreement ("Agreement") is between the Southern California Regional Rail Authority (hereinafter referred to as "SCRRA' and (hereinafter referred to as "Contractor"). This Agreement is for entry upon, over and under SCRRA and Member Agency right of way ("Right of Way") at or near in the City of (as such location is more specifically identified above) for the purpose of shown on attached drawings). 1. Def=itions A. Contractor is an individual, firm, partnership or corporation or combination thereof, private, municipal or public, including joint ventures, which are referred to throughout this document by singular number and masculine gender. For purposes of this agreement, Contractor also includes any subcontractor, supplier, agent or other individual entering the Right of Way during performance of work B. Indemnitees are SCRRA, Member Agencies and Operating Railroad and their respective officers, commissioners, employees, agents, successors and assigns. C. Operating Railroad is/are that specific passenger or freight-related railroad company(s) validly operating on SCRRA and Member Agency track(s). Operating Railroads are any combination(s) of the SCRRA (METROLINK), the National Railroad Passenger Corporation (AMTRAK), the Union Pacific Railroad Company (LJPRR) and the BNSF Railway Company. D. Property and Right of Way is defined herein to mean the real and/or personal property of SCRRA and/or Member Agencies. E. SCRRA is a five-county joint powers authority, created pursuant to State of California Public Utilities Code Section 130255 and California Government Code Section 6500 et seq., to build and operate the "Metrolink" commuter train system in the five-county area on rail rights-of--ways owned by the Member Agencies. The five-county Member Agencies are comprised of the following: Los Angeles County Metropolitan Transportation Authority (MTA), Ventura County Transportation Commission (VCTC), Orange County Transportation Authority (OCTA), San Bernardino Associated Governments (SANBAG), and Riverside County Transportation Commission (RCTC). F. SCRRA Railroad Employee (SRE) is a Southern California Regional Rail Authority employee or SCRRA FORM N0.6 or in the Unincorporated County of Page I of 13 Rev. 9/I 8/06 contractor (SCRRA General Code of Operating Rules and Territory Qualified) providing warning to Public Agency or Contractor personnel of approaching trains or on track equipment and who has the authority to halt work and to remove personnel from the Right of Way to assure safe work. G. SCRRA Safety Training Officer is a Southern California Regional Rail Authority employee (SCRRA General Code of Operating Rules qualified) authorized by the SCRRA Director of Engineering and Construction to provide Contractor training. 2. References When working on the Right of Way, the Contractor must comply 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 out in full in this paragraph. The Contractor, by its signature on this Agreement, acknowledges receipt of these documents and agrees to abide by said rules and regulations at all times when on the Right of Way. A. Rules and Requirements for Construction on Railway Property, SCRRA Form No. 37. B. General Safety Regulations for Third Party Construction and Maintenance Activity on SCRRA Member Agency Right of Way. 3. Entry Onto Right of Way No verbal approvals will be granted. The Contractor shall not enter onto the Right of Way unless Contractor has arranged for SCRRA safety training as well as protective services (SCRRA Railroad Employee (SRE) and/or other protective services to be determined by SCRRA) and has paid all charges and fees. A fully executed copy this Form 6 must be in the possession of the contractor at the job site and must be produced by Contractor upon request by SCRRA, a law enforcement officer or Member Agency's representative. If said Agreement is not produced, SCRRA has the right to suspend work in the Right of Way until Contractor demonstrates possession of Agreement at the job site. 4. Termination of Agreement SCRRA or Member Agency reserves the right to terminate or revoke this temporary Agreement at any time upon two hours notice; however, in the event of an unsafe condition on the Right of Way, SCRRA shall have the right to terminate this Agreement immediately, without any advanced notice. Unless subsequently modified, extended, temvnated or revoked by SCRRA, this temporary Agreement shall extend until the work authorized hereunder is completed or accepted by SCRRA. In any event, however, the Agreement shall be automatically terminated if Q when the insurance that the Contractor is required to maintain hereunder lapses or expires. The Contractor agrees to return the Property to a condition substantially the same as before construction, including replacement, repair, or reinstallation of railroad signs and property. Railroad signs include but are not limited to "No Trespassing", "Speed Limit", "Milepost", "Whistle", "Station Stop" and "Fiber Optics". The Contractor agrees to notify SCRRA, in writing and orally, when use of the Right of Way or work is completed (see Section 18 of this Agreement for SCRRA contact). Under no circumstances shall the temporary right of entry provided for under this Agreement be construed as granting to the Contractor or its Subcontractors and agents any right, title or interest of any kind or character in, on or about any Property. At the request of SCRRA or Member Agency, Contractor shall remove from the Right of Way any employee or other individual who has not completed safety training or otherwise fails to conform to the instructions of SCRRA's or Member Agency's representative in connection with work on the Right of Way. Any right of Contractor to enter upon the Right of Way shall be suspended until such request of SCRRA or Member Agency is met. Contractors shaIl defend, indemnify and hold harmless SCRRA and Member Agency against any claim arising from the removal of any such employee or other individual SCRRA FORM NO. 6 Page 2 of 13 Rev. 9/I 8/06 from the Right of Way. 5. Indemnification Contractor, on behalf of itself and its employees, subcontractors, agents, successors and assigns, agrees to indemnify, defend, by counsel satisfactory to SCRRA and Member Agency, and hold harmless "Indemnitees", and each of them to the maximum extent allowed by law, from and against all loss, liability, claims, demands, suits, liens, claims of lien, damages (including incidental consequential damages), costs and expenses (including, without limitation, any fines, penalties, judgments, actual litigation expenses and experts' and actual attorneys' fees), that are incurred by or asserted against Indemnitees arising out of or connected in any manner with (i) the acts or omissions of the Contractor or its officers, directors, affiliates, subcontractors or agents or anyone directly or indirectly employed by them or for whose acts the foregoing persons are liable (collectively, "Personnel") in connection with or arising from the presence upon or performance of activities by the Contractor or its Personnel with respect to the Right of Way, (ii) bodily and/or personal injury or death of any person (including without limitation employees of Indemnitees) or damage to or loss of use of Property resulting from such acts or omissions of the Contractor or its Personnel ar (iii) non performance or breach by Contractor or its Personnel of any terns or condition of this Agreement, in each case whether occurring during the term of this Agreement or thereafter. The foregoing indemnity shall be effective regardless of any negligence (whether active, passive, derivative, joint, concurring or comparative) on the part of Indemnitees, unless caused by the sole negligence or willful misconduct of Indemnitees, 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 by the Contractor or its Personnel shall not limit the Contractor's indemnification obligations hereunder in any way, whether or not such claims against Indemnitees may result in any limitation of the amount or type of damages, compensation or benefits payable by or for the Contractor or its Personnel under workers' compensation acts, disability benefit acts or other employee benefit acts or insurance. The provisions of this section shall survive the termination or expiration of this Agreement. 6. Assumption of Liability To the maximum extent allowed by law, the Contractor releases Indemnitees from and assumes any and all risk of loss, damage or injury of any kind to any person or property, including without limitation, the Property and/or Right of Way and any other property of or under the control or custody of, the Contractor or its personnel in connection with any acts undertaken under or in connection with this Agreement. The Contractor's assumption of nsk sha_ 11 include, without limitation, loss or damage caused by defects in any s c e '~ or improvement (`including -easement, -lease or -license agreements for ot~ier existing improvements and utilities) on the Right of Way, accident or fire or other casualty on the Right of Way or electrical discharge, noise or vibration resulting from SCRRA, Member Agency and Operating Railroad transit operations on or near the Right of Way and any other persons or companies employed, retained or engaged by SCRRA or Member Agency. The Contractor, on behalf of itself and its Personnel (as defined in Section 5, "Indemnification") 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 the Contractor and/or its Personnel. The Contractor 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, which if known by him must have materially affected his settlement with the debtor." The provisions of this Section shall survive the termination or expiration of this Agreement. SCRRA FORM NO. 6 Page 3 of 13 Rev. 9/18/06 7. Insurance The Contractor, 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 SCRRA or Member Agency in the amounts, coverage, and terms and conditions specified, and issued by insurance companies as described on Exhibit "A': SCRRA or Member Agency reserve 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. Prior to entering the Right of Way or performing any work or maintenance on the Right of Way, the Contractor shall furnish SCRRA with insurance endorsements or certificates in the form of Exhibit "B'; evidencing the existence, amounts and coverage of the insurance and signed by a person authorized by the insurer to bind coverage on its behalf. In most instances, SCRRA and Member Agency do not allow self-insurance; however, if the Contractor can demonstrate assets and retention funds meeting SCRRA and Member Agency self-insurance requirements, SCRRA and Member Agency may in SCRRA's sole and absolute discretion permit the Contractor to self-insure. The right to self-insure with respect to any coverage required hereunder may be granted or revoked at the sole and absolute discretion of SCRRA or any Member Agency. SCRRA or Member Agency shaIl not be liable for the payment of any premiums or assessments for insurance required to be maintained by the Contractor under this Agreement. Contractor affums that all subcontractors covered by this Agreement are insured to the same limits required of the Contractor or included in Contractor's policy. Prior to the expiration of any policy, the Contractor shall famish SCRRA with certificates of renewal or "binders" thereof. Each certificate shall expressly state that such policies shall not be cancelable or otherwise subject to modification except after thirty (30) days prior written notice to SCRRA and Member Agency. 8. A1o Assignment The Contractor shall not assign this Agreement or any right hereunder without SCRRA's and Member Agency's prior written consent. 9. Compliance by Contractor The Contractor shall take all steps necessary to assure that its subcontractors comply with the terms and conditions of this Agreement and applicable laws and regulations. The Contractor shall assure that no lien is placed against the Right of Way arising from performance of work hereunder by Contractor or any subcontractor, and in the event of such a lien, Contractor shall immediately remove or cause to be removed such lien. 10. Safety Orientation Class The Contractor and his subcontractors shall be required to attend a SCRRA Safety Orientation Class prior to receiving pemussion to enter the Right of Way. 11. SCRRA Safety and Protective Services The Contractor must request and arrange for on track safety protection satisfactory to SCRRA in the following circumstances: A. When Contractor's personnel or equipment encroach onto the Right of Way unless specifically exempted by SCRRA due to physical separation between tracks and Contractor's operation; B. When any part of any equipment is standing or being operated within or adjacent to the Right of Way or when any erection or construction activities are in progress within such limits; SCRRA FORM NO. 6 Page 4 of 13 Rev. 9/18/06 C. For any excavation within the railroad Right of Way; D. For any clearing, grubbing, grading or blasting in proximity to the Right of Way which, in the opinion of SCRRA or Member Agency's representative, may endanger the Right of Way or operations; E. For any street construction and maintenance activities, located within the Right of Way or in the vicinity of an at grade crossing, requiring temporary work area traffic control; F. For any work activity on or adjacent to the Right of Way as required by the Maintenance of Way (MOW) office. "The Contractor shall notify the SCRRA Training Officer (909-859-4113) to schedule mandatory safety training. Upon completion of safety training, the Contractor shall notify the SCRRA Maintenance of Way office (909-392-4506) a minimum of five (5) working days prior to beginning work on the Right of Way and secure any gotection SCRRA deems necessary. This prior notification does not guarantee the availability of on track safety protection for the proposed date of construction. To the full extent of Paragraph 5 above (Indemnification), Contractor agrees to indemnify SCRRA against any and all claims resulting from sickness or any other absence. 12. Reimbursement of Costs and Expenditures The Contractor agrees to reimburse SCRRA or Member Agency for all cost and expense incurred by SCRRA or Member Agency in connection with said work, including without limitation the expense of engineering plan review, staff costs to process approvals and agreements, safety training, furnishing an SCRRA Railroad Employee and protective services as SCRRA deems necessary. Contractor agrees to reimburse SCRRA for all construction related services including but not limited to installation and removal of falsework beneath tracks, restoration of railroad roadbed and tracks, installation of appropriate protective devices, temporary and permanent repairs of signal or communication equipment, restoration of the Right of Way to a condition satisfactory to SCRRA's and Member Agency's representative. The Contractor agrees to reimburse SCRRA or Member Agency actual cost and expense reasonably incurred for all services and work performed in connection with said work, including SCRRA's allocated overhead and fringe benefits. SCRRA will charge the Contractor four hours minimum for the mandatory safety training class and for other services four hours or less in duration. SCRRA will charge the Contractor for eight hours minimum if the Contractor cancels SCRRA services after SCRRA Railroad Employee or SCRRA Safety Training Officer is on site on the day of the appointment. The Contractor also agrees to reimburse SCRRA, Member Agency and/or Operating Railroad for any and all cost and expense incurred as a result of Contractor's work which may result in (i) unscheduled delay to the trains or interference in any manner with the operation of trains, (ii) unschedule d disruption to normal train operation, (iii) unreasonable inconvenience to the public or private user of the system, (iv) loss of revenue and (v) alternative method of transportation for passengers. SCRRA will submit final bills to the Contractor for cost incurred. Prior to commencement of work, the Contractor shall deposit with SCRRA the sum of dollars ($) representing the estimated expense to be incurred by SCRRA and Member Agency in connection with said work. As the work progresses, SCRRA may require additional progress payments as the scope of work changes or becomes clearer. SCRRA may discontinue services to Contractor pending receipt of progress payments. The deposit and progress payments shall be applied to SCRRA's and Member Agency's actual costs and expenditures. The Contractor shall be responsible to pay any amount exceeding the above payments upon receipt of notice or invoice by SCRRA. SCRRA shall exercise its best efforts to provide fmal invoicing to Contractor within 90 days following completion of the work; however, Contractor acknowledges that it shall be responsible for payment of all expenses SCRRA FORM NO. 6 Page 5 of 13 Rev. 9/18/06 incurred by SCRRA and Member Agency in connection with the work even if the fmal invoicing is provided to Contractor thereafter. Upon satisfactory completion of all work, any payments in excess of SCRRA's and Member Agency's costs and expenditures shall be returned to the Contractor within reasonable time. If there is no amount indicated in the blank space provided above for the deposit to be made by the Contractor, and if prior SCRRA written approval is obtained, in lieu of such deposit, Contractor shall cause surety bond to be executed by a reliable surety acceptable to SCRRA and Member Agency, conditioned upon the faithful performance of the provisions of this Agreement. 13. Temporary Traffic Control Temporary traffic control shall be used when a maintenance or construction activity is located on the Right of Way or when the activity is located in the vicinity of a highway-rail grade crossing, which could result in queuing of vehicles across the railroad tracks. Refer to SCRRA's "Temporary Traffic Control Guidelines" for further information on definitions, referenced standards, traffic control plans, submittals, traffic control elements and responsibility/authority for temporary traffic control at highway-rail grade crossings. The guidelines provide acceptable alternatives and procedures, which prescribe appropriate temporary traffic control measures at highway-rail grade crossings and are ava>lable on the SCRRA website. (http://www.metrolinktrains.com/Public Proiects Site/PDF Files/Temnorary Traffic Control Guidelines.pdfl 14. Environmental Health and Safety Plan Contractor shall immediately notify SCRRA and the appropriate regulatory agency (ies) of any spill, release, discharge or discovery of any hazardous material or contaminants in, on or under the Property. After providing such notice to SCRRA and the appropriate regulatory agency (ies), any contaminated soils or hazardous materials which aze spilled, released, dischazged or discovered by the Contractor, shall be promptly removed and disposed of by Contractor in accordance with all the applicable laws at Contractor's sole cost and expense. To the extent preexisting contamination or hazardous material, which was not caused or contributed to by Contractor, is discovered or unearthed by Contractor, Contractor shall only be obligated by this provision to removing and disposing of that portion of the contaminated soils or hazardous materials that are unearthed or otherwise disturbed during Contractor's operations. Prior to entry onto the Property, Contractor (s) performing trenching, excavations or soil borings may be required by SCRRA to submit a "Hazrodous Materials Work Plan." If required, said plan shall include Contractor's site-specific health and safety plan and any other information that SCRRA may require. Contractor shall ensure that all documentation for transportation or disposal of contaminated soils of hazardous materials is prepared in the Contractor's name only and that neither SCRRA nor Member Agency shall have any responsibility or liability therefor. Contractor shall defend and indemnify SCRRA for any spill, release or discharge of contaminants or hazardous materials by Contractor in connection with activities hereunder in accordance with Section 5 Indemnification (Page 2 of 12) 15. Warranty for Plan Review Review and or approval of the plans and calculations by SCRRA shall not relieve the Contractor of responsibility for full compliance. with contract requirements, correctness of design drawings and details, proper fabrication and construction techniques and coordination with other government and private permitting agencies, nor shall such review or approval by SCRRA in any way relieve Contractor from, or otherwise modify, Contractors' indemnity obligations (Section 5) or assumption of liability obligations (Section 6). Execution of this right of entry does not imply design warranty or responsible chazge on the part of SCRRA engineering employees. The parties expressly agree that SCRRA makes no warranty of any kind and assumes no responsibility therefore. SCRRA FORM NO.6 Page 6 of 13 Rev. 9/18/06 16. Miscellaneous Wherever the context of this document so requires, words used in the masculine gender shall include the feminine and neuter genders; words used in the neuter gender shall include the masculine and feminine genders; words in the singular shall include the plural; and words in the plural shall. include the singular. 17. Emergency Telephone Numbers The Contractor must immediately contact SCRRA in case of accidents, personal injury, defect in track, bridge or signals or any unusual condition that may affect the safe operation of the railroads. The following are SCRRA's emergency numbers: Signal emergencies and grade crossing problems (888) 446-9721 Metrolink Chief Dispatcher (909) 593-0661 or (888) 446-9715 Metrolink Sheriffs Dispatcher (323) 563-5280 Signal and Communications Cable Location (909) 392-8476 18. Notices Except as otherwise provided in this agreement, all notices, statements, demands, approvals or other communications to be given under or pursuant to this agreement will be in writing, addressed to the parties at their respective addresses as provided below and will be delivered in person or by certified or registered mail, postage paid or by telegraph or cable, charges pre-paid SC)tRA: Manager Public Projects Southern California Regional Rail Authority (SCRRA) 700 South Flower Street, Suite 2600 Los Angeles, CA 90017-4101 Attn: Right of Way Engineer 213/452-0353 Contractor: Contractor's address is shown below. 19. California Law This agreement shall be construed and interpreted in accordance with and governed by the laws of the State of California. SCRRA FORM NO.6 Page 7 of 13 Rev. 9/18/06 The Contractor hereby agrees to the terms as set forth in this Agreement and hereby acknowledges receipt of this Agreement and of the insurance certificate forms (Exhibits A & B) herein provided. (Name of Contractor) (Address) (Telephone) (Fax) (Signature) (Print Name) (Title) (Contractor's State License No.) Receipt of the foregoing agreement and certificated of insurance furnished by the Contractor are hereby acknowledged on this day of 20 SOUTHERN CALIFORNIA REGIONAL RAIL AUTHORITY By: Right of Way Engineer By: Manager Public Projects [Approved As To Form By Legal Counsel] SCRRA FORM NO. 6 Page 8 of 13 Rev. 9/18/06 EXIiIBIT "A" OF SCRRA FORM N0.6 INSURANCE REQUIREMENTS FOR RIGHT OF ENTRY AGREEMENTS Contractor 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 performance of the work by the Contractor, his agents, representatives, employees or subcontractors. Minimum Scope of Insurance Coverage shall be at least as broad as: ~ Insurance Services Office Commercial General Liability coverage (occurrence form CG 0001). ^ Insurance Services Office form No. CA 0001 (Ed. 1/87) covering Auto. Liability, code 1(any auto). ~ Worker's Compensation insurance as required by the State of CA. & Employer's Liability Insurance. ^ Course of Construction insurance form providing coverage for "all risks" of loss. ^ Property.insurance against all risks of loss to any tenant improvements or betterment. ^ Contractor's Pollution Liability 2. Minimum Limits of Insurance Contractor shall. maintain limits no less than: ~ General Liability: $2,000,000 per occurrence for bodily injury, personal injury and Property damage. ^ If Commercial General Liability Insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence lirurt. ^O Automobile Liability: $1,000,000 per accident for bodily injury and Property damage, O Employer's Liability: $1,000,000 per accident for bodily injury or disease. ^ Course of Construction: Completed value of the project. ^ Properly Insurance: Full replacement cost with no coinsurance penalty provision. ^ Contractor's Pollution Liability: $1,000,000 per occurrenceJ$2,000,000 annual aggregate 3. Certificate Bolder/Additional Insured Certificate holder and/or insured will be the following: Southern California Regional Rail Authority (SCRRA) Additionally Insured will be the following: Los Angeles County Metropolitan Trans. Auth. (MTA) Burlington Northern Santa Fe Corp. tBNSF) Orange County Transportation Authority (OCTA) Union Pacific Railroad Company (UPRR) Riverside County Transportation Commission (ROTC) National Railroad Passenger Corporation (Amtrak) San Bernardino Associated Government (SANBAG) Ventura County Transportation Commission (VCTC) 4. Railroad Protective Liability Insurance ~ Railroad Protective Liability Insurance The Contractor shall provide, with respect to the operations they or any of their subcontractors perform on the Property, Raikoad Protective Liability Insurance, AAR-AASHTO (ISO/RIl~IA) in the name of the railroads and Member Agencies shown in Section 3 above. SCRRA FORM N0.6 Page 9 of l 3 Rev.9/18/06 The policy shall .have limits of liability of not less than $2 million per occurrence, combined single limit, for coverage and for losses arising out of injury to or death of all persons and for physical loss or damage to or destruction of Property, including the loss of use thereof. A $6 million annual aggregate shall apply. If coverage is provided on the London claims-made form, the following provisions shall apply: A. The limits of liability shall be not less than $3 million per occurrence, combined single limit. A $9 million aggregate may apply. B. Declarations item 6, extended claims made date, shall allow an extended claims made period no shorter than the length of the original policy period plus one year. C. If equivalent or better, wording is not contained in the policy form, the following endorsement must be included: It is agreed that "physical damage to Property" means direct and accidental loss of or damage to rolling stock and their contents, mechanical construction equipment or motive power equipment, railroad tracks, roadbed, catenaries, signals, bridges or buildings. For ceitain low-hazard activity, Contractor may request that the SCRRA and Member Agency waive the requirement to provide the Railroad Protective Liability Insurance. If the exposure to the track is physically separated by a building, floor or a continuous fence (no thoroughfares) and the employees of the Contractor are explicitly notified that they are not permitted to have any contact with the track, the Railroad Protective Liability Insurance requirement may be waived by SCRRA's Manager Public Projects or his/her designated representative. 5. Deductibles and Self-Insured Retentions Any deductibles or self-insured retentions must be declared to and approved by SCRRA and Member Agency. At the option of SCRRA, either: the insurer shall reduce or eliminate such deductibles or self- insured retentions as respects SCRRA and Member Agency, its officials and employees or the Contractor shall procure a bond guaranteeing payment of losses and related investigations, claim administration and defense expenses. 6. Other Insurance Provisions The General Liability and Automobile Liability policies are to contain, or be endorsed to contain, the following provisions: A. SCRRA and Member Agency, its subsidiaries, officials and employees are to be covered as insureds as respects: liability arising out of activities performed by or on behalf of the Contractor; premises owned, occupied or used by the Contractor, or automobiles owned, leased, hired or borrowed by the Contractor. The coverage shall contain no special limitations on the scope of protection afforded to SCRRA and Member Agency, its subsidiaries, officials and employees. B. For any claims related to this project, the Contractor's insurance coverage shall be primary insurance as respects SCRRA and Member Agency, its subsidiaries, officials and employees. Any insurance or self-insurance maintained by SCRRA and Member Agency, its subsidiaries, officials and employees shall be excess of the Contractor's insurance and shall not contribute with it. C. Any failure to comply with reporting or other provisions of the policies including breaches of warranties shall not affect coverage provided to SCRRA and Member Agency, its subsidiaries, officials and employees. D. The Contractor insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability. SCRRA FORM NO. 6 Page 10 of 13 Rev. 9/18/06 E. Each insurance policy required by this clause shall be endorsed to state that coverage shall not be suspended, voided, canceled by either party, reduced in coverage or in limits except after thirty (30) days' prior written notice by certified mail, return receipt requested, has been given to SCRRA and/or Member Agency. Course of Construction policies shall contain the following provisions: A. SCRRA and Member Agency shall be named as loss payee. B. The insurer shall waive all rights subrogation against SCRRA and Member Agency. 7. Acceptability of Insurers Insurance is to be placed with insurers with a current A.M. Best's rating of no less than A:VII, unless otherwise approved by SCRRA and Member Agency. 8. Verification of Covera e Contractor shall famish SCRRA with original endorsements effecting coverage required by this clause. The endorsements are to be signed by a person authorized by that insurer to bind coverage on its behalf. The endorsements are to be on forms provided by SCRRA. All endorsements are to be received and approved by SCRRA before work commences. As an alternative to SCRRA's forms, the Contractor's insurer may provide complete, certified copies of all required insurance policies, including endorsements effecting the coverage required by these specifications. 9. Subcontractors Contractor shall include all subcontractors as insured under its policies or shall furnish separate certificates and endorsements for each subcontractor. All coverage for subcontractors shall be subject to all of the requirements stated herein. 10. Train Services Approximate daily train traffic is passenger trains and freight trains. 11. Submittal The original insurance policy (s) shall be submitted to: Manager Public Projects Southern California Regional Rail Authority (SCRRA) 700 South Flower Street, Suite 2600 Los Angeles, CA 90017-4101 Attn: Right of Way Engineer 213/452-0353 SCRRA FORM NO. 6 Page 11 of 13 Rev. 9/18/06 EX~IZBIT '-Btt OF SCRRA FARM N4.6 RAILROAD PROTECTIVE LIABILITY POLICY DECLARATION POLICY Insurance Company: Policy Number: Policy Period: From: To: 12:01 am Standard time at location CERTIFICATE HOLDER AND ADDITIONALLY INSURED Southern California Regional Rail Authority (SCRRA) tficate Holder/Insured: 700 South Fiower Street, Suite 2600, Los Angeles, CA 90017-4101 Additionally Insured: Los Angeles County Metropolitan Transportation Authority (MTA Orange County Transportation Authority (OCTA) ) Burlington Northern Santa Fe Corporation (BNSF) Riverside County Transportation Commission (RCTC) Union Pacific Rar7road Company (UPRR) San Bernardino Associated Governments (SANBAG) National Railroad Passenger Corporation (Amtak) Vetrtura County Transportation Commission (VCTC) LIMITS OF INSURANCE Aggregate Limit 56,000,000 Each Occurrence Limit 52,000,000 DESCRIPTION OF WORK AND JOB LOCATION(S) NAME AND ADDRESS OF DESIGNATED CONTRACTOR NAME AND ADDRESS OF INVOLVED GOVERNMENT AUTHORITY OR OTHER CONTRACTING PARTY PREMIUM Contract Cost Premium Base FORM OF ENDORSEMENT Title Rate per 1,000 of umber COUNTERSIGNATURE Countersigned by SCRRA FORM N0.6 (Authorized Representative) Page 12 of 13 Date Advance Premium Rev. 9/I 8106 EXHIBIT "$rr OF SCRRA FORM NO_fi ISSUE DATE (MM/DDIYY) CERTIFICATE OF INSURANCE Southern California Regional Rail Authority (SCRRA) . THIS OVERAGE AFFORDS BYCTHE POLICY BELO~NCE POLICY AND DOES NOT AMEND. EMEhND OR ALTER PRODUCER COiVIPANIES AFFORDING COVERAGE COMPANY A LETTER COMPANY B LETTER COMPANY C INSURED LETTER COMPANY D LETTER COMPANY E LETTER COVERAGES THIS IS TO CERTffY THAT THE POLICIES OF INSURANCE LISTED B~~ RESPECTECT T'O WHICH IHI CS ERTCFICATE MAY BE ISSUED OR MAY PERTAIN LATHE INSURANCEINAFF/)RDED BY THE • TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT POLICIES DESCRIBID }lERE(N IS SUBIECT TO ALL THE TFRidS• EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIA~BTS SHOWN MAY HAVE BEIN RIDUCID BY PAID r In (ITC OD I TYPE OF INSURANCE LTR GENERAL LIABILITY ^ COhAffRCIALGENFRALLLABn.ITY ^ CLAMS MADE ^ OCCUR ^ OWNERS & CONTRACTORS PROT. ^ OITffR AUTOMOBILE LIABILITY ^ ANY AUTO ^ pLL OWNED AUTO ^ SCHEDULED AUTOS ^ HIRED AUTOS ^ NON-OWNEDAUTOS ^ GARAGE LIABILITY EXCESS LIABILITY ^ UMBRELLA FORM ^ 07HatTHANUMBRELLAFORM PROPERTY INSURANCE ^ COURSE OF CONSTRUCTION WORIOiR'S COMPENSATION AND EMPLOYERS LIABILTTY POLICY NUMBER ~C~UD~ DIDA~IE ~/DD~/1~ N DESCRIPTION OF OPERATIONS/LOCATIONS/VEHICLFSISPECIAL ITEMS GENERAL AGGREGATE PRODUCISCOMP/OPAGG. PERSONAL R. ADV. INJURY FIRE DAMAGE (~ aye Cue) MED.EXPENSE (Arty one person) COMBINED SINGLE LIMIT BODILY INJURY (Per person) BODILY INJURY (Per xcidcnt) PROPERTY DAMAGE EACH OCCURRENCE AGGREGATE AMOUNT OF INSURANCE STA7UARY LIMITS EACH ACCIDENT DISEASE-POLICY LIMIT DISEASE-EACH EMPLOYEE THE FOLLOWING PROVISIONS APPLY: 1. None of the above-0escribed policies will be canceled, limited in scope of coverage or nonrenewed until after 30 days' written notice has been given to SCRRA a[ the address indicated below. 2~ Membec Agencies oOpenting Rarlro ds its subsidt genes off cialsoand employeesfollowrng are added as additional insured on all liability insurance policies listed above: SCRRA, rts 3. It is agreed that any insurance of sel~nsunnce maintained by SCRRA will apply in excess of and not contribute with, the insurance described above. 4. SCRRA is named a loss payee on the properly insurance policies described above, if any. $. All rights of subrogation under the property insurance policy listed above have been waived against SCRRA. 6. Any failure by the insured to comply with re orting or other provisions of the policies including breaches ofwarranties shall not affect coverage provided to SCRRA, its Member Agencies, its subsidiaries, offictals and emplPoyecs. T~ or use of MembttpAgenctos premisesaor fai lines ~f any, agrees to waive all rights of subrogation against SCRRA for injuries to employees of the insured resulting horn work for SCRRA CERTIFICATE HOLDER Southern California Regional Rail Authority (SCRRA) 700 South Flower St., Suite 2600, Los Angeles, CA 90017-4101 ADDITIONAL INSURED MIA, OCTA, RCTC, SANBAG, VCTC BNSF, UPRR, AMTRAK AUTHORIZED REPRESENTATIVE SIGNATURE TITLE PHONE NO. Page 13 of 13 Rev.9/18/06 SCRRA FORM N0.6