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04-0727_ORANGE COUNTY TRANSPORATION AUTHORITY_License Agreement
FILE: OC-225 LICENSE AGREEMENT This LICENSE AGREEMENT ("Agreement") is made and entered into as of July 27, 2004, by and between the ORANGE COUNTY TRANSPORTATION AUTHORITY, a public entity ("OCTA"), and the CITY OF SAN JUAN CAPISTRANO ("Licensee"), upon and in consideration of the agreements, covenants, terms and conditions below: PART I. - BASIC LICENSE PROVISIONS 1. Description of License Property: A. A portion of OCTA Orange Subdivision railroad right of way at Mile Post 197.88, in San Juan Capistrano, California, as shown in Exhibit "A", attached hereto and incorporated herein by this reference. Approximate area: 5827+/- square feet. Legal Description: Licensee shall provide a Legal Description of the License Property (as defined herein) to OCTA within 30 days after the License Commencement Date (as deferred herein). After said Legal Description is approved by OCTA, said Legal Description shall be attached to the Agreement as Exhibit "C", incorporated herein by this reference. 2. Use of License Property: Licensee desires to use the License Property to create and maintain a pedestrian/bicycle undercrossing for use by the public. Licensee is granted a non- exclusive license to access and use the License Property to construct, install, alter, maintain, reconstruct, remove and repair the Facility (as defined herein). The License permits the Licensee to allow the public to access and use the Facility. 3. Commencement Date: This Agreement is made effective as of the date on which all parties have signed this Agreement; 4. Condition Precedent: In the event that the Licensee fails to obtain project approval from the California Public Utilities Commission ("CPUC") on or before January 26, 2006, this Agreement is null and void and Licensee shall forfeit any and all License fees paid as of that date. Licensee shall not enter the License Property or make any improvements on the License Property until after the CPUC issues final approval for the Licensee's Facility. 5. Term: Twenty (20) years beginning on the date first written above; 6. License Fees: Page 1 of 20 FILE: OC-225 The License is granted for a one time fee of one-thousand-dollars ($1,000) which is due and payable in full upon on the Commencement Date. 7. Insurance Requirements: Insurance requirements are detailed in Section 16 of the General License Provisions of this Agreement. 8. A) OCTA's Address: ORANGE COUNTY TRANSPORTATION AUTHORITY 550 S. Main Street P. O. Box 14184 Orange, CA 92863-1584 Southern California Regional Rail Authority 700 South Flower Street, 26th Floor Los Angeles, CA 90017-4101 Attn: Naresh Patel B) Licensee's Address: Licensee's Address: CITY OF SAN JUAN CAPISTRANO 32400 Paseo Adelanto San Juan Capistrano, CA 92675 9. Definition of Facility; Licensee's Facility is defined as a project approved by the CPUC consisting of a pedestrian/bicycle undercrossing and a three-span rail bridge, including, but not limited to: bridge piers and abutments, retaining walls, lighting, drainage system, 600' +/- of bikeway pavement, bikeway facilities, curb and gutter, striping, signage and appurtenances as shown and described on Exhibit "D" attached. PART IL GENERAL LICENSE PROVISIONS 1 . License/Term. 1.1 License. OCTA hereby grants Licensee a non-exclusive license in, on, over, under, across and along the real property of OCTA in the location shown in the diagram attached hereto as Exhibit "A" and incorporated herein by this reference, and described in Item 1 of the Basic License Provisions (the "License Property"), for construction, installation, operation, alteration, maintenance, reconstruction and/or removal of the Facility described in Item 9 of the Basic License Provisions, and any usual, Page 2 of 20 FILE: OC-225 necessary and related appurtenances thereto (the "Facili "), for the limited 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, subject to the terms and conditions contained herein. 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 Prooertv"). 1.2 Term of Aqreement. The term ("Term") of this Agreement shall commence on the "Commencement Date" specified in Item 3 of the Basic License Provisions. This Agreement shall be a license for the term specified in Item 5 of the Basic License Provisions; provided, however, that OCTA shall have the right to terminate this Agreement if Licensee breaches this Agreement, or if Licensee abandons the Facility or the License Property. 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 A one-time license fee of$1,000 is due and payable upon the Commencement Date. 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 use of the License Property, or the Facility, or(c), both (a) and (b). 4. Construction. 4.1 General Provisions. Any work performed or caused to be performed by Licensee on the Facility or the License Property shall be performed: (a) at Licensee's sole cost and expense; (b) in accordance with any and all applicable laws, rules and regulations (including OCTA's rules and regulations); and (c) in a manner which is (i) equal to or greater than the then applicable standards of the industry for such work, and (ii) reasonably satisfactory to OCTA. Licensee shall prepare detailed work plans (the "Work Plans") setting forth any and all construction, reconstruction, installation, restoration, alteration, repair, maintenance, replacement, removal, landscaping, fencing and sign erection work (hereinafter, "Construction Work") Licensee plans to perform on Page 3 of 20 FILE: OC-225 the License Property. Such Work Plans shall be submitted to OCTA for its review and approval prior to any work being performed, and shall be developed, altered and/or changed so as to meet the requirements of OCTA. Licensee shall not perform, nor cause any of Licensee's Parties to perform, any Construction Work on License Property until it has received written approval of the relevant Work Plans from OCTA. Changes to approved Work Plans are allowed hereunder. However, all such changes must be reviewed and approved in writing by OCTA prior to their implementation. Any Construction Work to be performed on the License Property must be carried out pursuant to Work Plans or changes approved in writing by OCTA. In no event shall approval by OCTA of any plans for any Construction Work be a representation that any such plans comply with any applicable laws nor shall OCTA bear any liability or responsibility for the work performed on the License Property. Licensee shall comply with all laws applicable to any Construction Work, and shall be solely responsible for obtaining all required approvals and permits for the same and for any liability for the same. 4.2. Initial Construction of Facility. With respect to the initial construction and installation of the Facility, Licensee shall ensure that neither it nor any of Licensee's Parties shall enter upon the License Property until Licensee and each of Licensee's Parties which plan to enter the License Property have met all of the requirements of SCRRA and OCTA, which may include a requirement that each of such Licensee's Parties enter into a written right-of-entry agreement with SCRRA and OCTA. Licensee's request for such SCRRA and OCTA requirements shall be made in writing and must be delivered to SCRRA and OCTA, at the addresses set forth in Item 8 of this Agreement's Part I, at least ten (10) working days prior to any of Licensee's Parties proposed entry onto the License Property. 4.3 Work Performed After Initial Construction. Except for emergency work and normal day-to-day maintenance work, the provisions of Sections 4.1 and 4.2 of this Agreement's General License Provisions shall apply to all work performed on the Facility or the License Property after the initial construction and installation of the Facility. In cases of emergency, Licensee shall notify OCTA's representative personally or by phone and obtain authorization prior to commencing such work. Normal, day-today maintenance work on the Facility or the License Property, may be performed by Licensee or authorized Licensee's Parties without written notice to OCTA or SCRRA, without Work Plans and without Work Plan approval by OCTA (subject to the other provisions of this Agreement), so long as Licensee and its authorized Licensee's Parties performing such day-to-day maintenance; (i) have previously met OCTA's and SCRRA's requirements; (ii) have previously received OCTA's and SCRRA's written approval to access the License Property to perform similar work; (iii) abide by OCTA's and SCRRA's requirements at all times while on the License Property, and (iv) perform all such maintenance work from entirely within the License Property. 4.4. As-Built Drawinos. Within ninety (90) days after the substantial completion of the construction and installation of the Facility, Licensee shall deliver to OCTA, for OCTA's and SCRRA's review and approval, two (2) full sets of as-built drawings for the Facility (the "As-Built Drawings'). The As-Built Drawings are subject to the review and Page 4 of 20 FILE: OC-225 approval of OCTA and SCRRA, and shall be developed, altered and/or changed so as to meet the requirements of OCTA and SCRRA. At a minimum, however, such As-Built Drawings must: (i) be substantially of the form of the Work Plans approved by OCTA and SCRRA; (ii) include all changes to the Work Plans which were approved, in writing, by OCTA; (iii) show all improvements and construction performed by Licensee, or caused to be performed by Licensee, on the License Property; (iv) clearly indicate and label the area of the License Property; (v) show the centerline of all railroad tracks existing on the OCTA Property as of the date that construction and installation of the Facility was substantially complete; and (vi) show, to scale, on all overhead and cross section drawings the easterly and westerly boundaries of the License Property, and the Facility with respect to the centerline of the mainline railroad track existing on the OCTA Property as of the date that construction and installation of the Facility was substantially complete. To the extent that the As-Built Drawings indicate or show that the Facility has not been constructed pursuant to the Work Plans approved by OCTA or any change thereto approved by OCTA, Licensee shall, at the request of OCTA or SCRRA, rebuild, reconstruct and/or reinstall th facility, at Licensee's sole cost and expense, so that the Facility will be constructed, located and installed in accordance with the approved Work Plans and the approved changes thereto. Failure to provide As-Built Drawings to OCTA as set forth herein shall be deemed a material breach of this Agreement. 5. Contractors--Approval and Insurance. All agents of Licensee performing construction work on the Facility or the License Property shall first be approved in writing by OCTA. Licensee shall cause any and all of its agents which may (a) be involved with such construction work, or (b) may, for any reason, need to enter onto the License Property, to obtain and maintain in full force and effect during the term of such construction work insurance, as required by OCTA, in the amounts and coverages specified on, and issued by insurance companies as described on Section . OCTA reserves the right, throughout the term of this Agreement, to review and change the amount and type of insurance coverage it requires in connection with this Agreement. 6. Reimbursement. Licensee agrees to reimburse OCTA and SCRRA for all reasonable costs and expenses incurred by OCTA and SCRRA in connection with any construction work on or maintenance of the License Property or the Facility, including, but not limited to, costs incurred by OCTA and SCRRA in furnishing any materials or performing any labor, reviewing Licensee's Work Plans and/or inspecting any Construction Work, installing or removing protection beneath or along OCTA's track, furnishing of watchmen, flagmen and inspectors as OCTA deems necessary, and such other items or acts as OCTA in its sole discretion deems necessary to monitor or aid in compliance with this Agreement. 7. Liens. Licensee will fully and promptly pay for all materials joined or affixed to Facility or the OCTA Property, and fully and promptly pay all persons who perform labor upon said Facility or the OCTA Property. Licensee shall not suffer or permit to be filed or enforced against the OCTA Property or the Facility, or any part thereof, any mechanics', materialmen's, contractors', or subcontractors' liens or stop notices arising from, or any claim for damage growing out of, any testing, investigation, maintenance, construction Page 5 of 20 FILE: OC-225 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 all 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, but not limited to, 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 promptly discharge any mechanic's liens or stop notice for works performed for Licensee, OCTA shall have the right to discharge same (including by paying the claimant), and Licensee shall reimburse OCTA for the cost of such discharge within ten (10) business days after billing. OCTA reserves the right at any time to post and maintain on the OCTA Property such notices as may be necessary to protect 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 laws. Licensee shall be responsible for any citations issued as a result of Licensee's failure to comply with all applicable laws. If any portion of the OCTA Property or any property of the Southern California Regional Rail Authority (SCRRA), the National Railroad Passenger Corporation (Amtrak), the Burlington Northern Santa Fe (BNSF) or other freight or passenger rail operators, including improvements, fixtures or rolling stock, suffers damage by reason of the access to or use of the License Property, by Licensee, Licensee's Parties or by Licensee's partners, officers 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 damaged property to as good a condition as before such cause of damage occurred. Repair of damage shall include, without limitation, regrading and resurfacing of any holes, ditches, indentations, mounds or other inclines created by an excavation by Licensee's Parties. Repair work shall be performed at License's sole expense. 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. The barrier landscaping, fencing and signs required herein shall be installed and maintained by Licensee to the satisfaction of OCTA. Licensee shall prepare landscaping, fencing and sign plans as part of the Work Plans to be prepared by Licensee pursuant to the provisions of Section 4 of this Agreement's General License Provisions. As with all other Work Plans, such landscaping, fencing and sign plans shall be submitted to OCTA for review and approval prior to the installation of any barrier landscaping, fencing or signs. All landscaping, fencing (including gates) and sign installation and work shall be constructed and maintained in accordance with the provisions of Section 4 and Section 5 Page 6 of 20 FILE: OC-225 of this Agreement's General License Provisions, and shall be subject to Section 6 and Section 7 of this Agreement's General License Provisions. After installation, all landscaping, fencing (including gates) and signs shall be maintained and repaired in accordance with the provisions of Section 8 of this Agreement's General License Provisions by Licensee. 10. Use. The License Property and the Facility shall be used only for the purposes specified in Item 2 of the Basic License Provisions. No change shall be made by Licensee in the use of the License Property or the Facility without OCTA's prior written approval. 11. Abandonment. Should Licensee at any time abandon the use of the Facility or the License Property, or any part thereof, or fail at any time for a continuous period of ninety (90) days to use the same for'the purposes contemplated herein, then this Agreement shall terminate to the extent of the portion so abandoned or discontinued, and in addition to any other rights or remedies, OCTA shall immediately be entitled to exclusive possession and ownership of the portion so abandoned or discontinued, without the encumbrance of this Agreement. OCTA at its options, may remove any improvements remaining on the abandoned property, at Licensee's sole cost and 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; (b) with written notice or demand, and Licensee's failure to cure the breach within thirty (30) days of notice being given, or fewer days in the event the breach impacts public health, welfare or safety, OCTA may terminate this Agreement and at any time thereafter, recover possession of the License Property or any part thereof, and expel and remove therefrom Licensee or any other person occupying the License Property, by any lawful means, and again repossess and enjoy the License Property and the Facility, without prejudice to any of the rights and remedies that OCTA may have under this Agreement, at law or in equity by reason of Licensee's default or of such termination. 13. Surrender. Upon termination of this Agreement, (including, but not limited to, a termination resulting from expiration of the license term, or a breach or an abandonment of all or a portion of the Facility or the License Property) unless otherwise required in writing by OCTA prior to the date of termination, Licensee may, at its own cost and expense: (i) remove the Facility and restore the OCTA Property to the same state and condition as existed prior to the construction, reconstruction or installation of said Facility, or (ii) leave all, or any portion of, the Facility in place on the License Property, or (iii) replace the Facility with a comparable facility approved by OCTA. Should Licensee fail to select one of the options listed in the preceding sentence prior to six (6) months before the termination date, unless termination is due to a breach by Licensee in which case Page 7 of 20 FILE: OC-225 OCTA shall select the option which Licensee shall implement immediately, OCTA may at its option (a) select an option on Licensee's behalf and at Licensee's sole expense, or (b) assume title and ownership of said Facility. No termination hereof shall release Licensee from any liability or obligation hereunder, whether of indemnity or otherwise, resulting from any acts, omissions or events occurring prior to the date the Facility is removed and the OCTA Property is restored. 14. Indemnification. Licensee shall indemnify, defend (by counsel satisfactory to OCTA), and hold harmless OCTA, SCRRA, and other passenger and freight railroad entities including, but not limited to, Amtrak, BNSF, and their respective officers, directors, commissioners, employees, agents, contractors, successors and assigns (individually and collectively, "Indemnitees"), to the maximum extent allowed by law, from and against all loss, liability (including liability with respect to death, injury and personal and property damage), claims, demands, suits, liens, claims of lien, damages (including, but not limited to consequential damages), costs and expenses (including, without limitation, any fines, penalties, judgments, litigation expenses, and experts' and attorneys' fees) (collectively "Claims and Expenses"), that are incurred by or asserted against Indemnitees arising out of or connected in any manner with the use or misuse of the Licensed Property, the Facility and/or the OCTA Property, by Licensee's Parties, members of the public and all others who enter onto the License Property and any alleged act or omission to act of the Licensee, its officers, directors, affiliates, Licensee's Parties or anyone directly or indirectly employed by or for whose acts Licensee is liable (collectively, "Personnel") in connection with this Agreement, the License Property, the Facility and/or the OCTA Property. The foregoing indemnity shall be effective regardless of any negligence (whether active, passive, derivative, joint, concurring or comparative) on the part of Indemnitees. Licensee's obligation to indemnify OCTA and the above-referenced passenger and freight railroad entities shall survive termination of this Agreement; and is in addition to any other rights or remedies which Indemnitees may have under the law or under this Agreement. Claims against the Indemnitees 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 Licensee, Licensee's Parties and Personnel, members of the general public and their property and Licensee's property, including, without limitation, the Facility, the License Property and any other property of, or under the control or custody of, Licensee, which is on or near the License Property or the OCTA Property. Licensee's assumption of risk shall include, without limitation, loss or damage to Licensee, Licensee's Parties and Personnel, and Licensee's Property 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 Page 8 of 20 FILE: OC-225 vibration resulting from Indemnitees' transit operations on or near the License Property and/or OCTA Property. Licensee, on behalf of itself, its agents and their Personnel (as defined in Section 14) as a material part of the consideration for this Agreement, hereby waives all claims and demands against the Indemnitees for any such loss, damage or injury of Licensee, its agents and/or Personnel. In that connection, Licensee waives the benefit of California Civil Code Section 1542, which provides as follows: A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, 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 $5,000,000 of coverage and a $10,000,000 aggregate limit. 2. Automobile Liability Insurance with combined single limits of a minimum of $2,000,000; 3. Workers' Compensation with limits as required by the State of California; with a waiver of subrogation rights favorable to Licensor and Employers' Liability with limits of a minimum of$1,000,000; and 4. Railroad Protective Liability insurance will also be purchased at the following levels: $2,000,000 per occurrence, combined single limits, for coverage and for losses arising out of injury or death of all persons, and for physical loss or damage to or destruction of Property, including the loss of use thereof and a $6,000,000 annual aggregate. 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 a broker-issued insurance certificate, must be received by AUTHORITY within ten (10) calendar days from the date of execution of the Agreement; with the Orange County Transportation Authority, its officers, directors, employees and agents designated as additional insurers. Furthermore, AUTHORITY 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. Page 9 of 20 FILE: OC-225 D. OTHER INSURANCE PROVISIONS OCTA, its officers, directors, employees and agents must be designated as additional insured on the Licensee's Comprehensive General and Automobile Liability Insurance policies. Licensee shall furnish OCTA with insurance endorsements and certificates, evidencing the existence, amounts and coverages of the insurance required to be maintained hereunder. There shall be no exclusion for explosions, collapses and underground hazard. SCRRA, Amtrak and BNSF, and other freight and passenger rail services providers as designated by OCTA and their officers, Directors, Employees and agents must be designated as an additional insured on the Licensee's Comprehensive General and Automobile Liability Insurance Policies. Coverage purchased on a claims made form shall provide for at least a two (2) year extended reporting or discovery period if (a) the coverage changes from a claims made form to an occurrence form, (b) there is a lapse/cancellation of coverage, or (c) the succeeding claims made policy retroactive date is different for the expiring policy. The coverage shall be primary and any insurance or self-insurance maintained by OCTA, SCRRA, their subsidiaries, officials and employees shall be excess of the Licensee's insurance and shall not contribute with it. Each insurance policy required by this clause shall be endorsed to state that coverage shall not be suspended, voided, canceled or reduced in coverage or in limits, except only after thirty (30) days prior written notice has been given to OCTA. In the event OCTA learns that Licensee's insurance coverage is being terminated and Licensee fails to provide adequate assurances that continuous coverage is being provided, OCTA and at its sole discretion, may obtain such coverage at Licensee's expense. Course of construction policies shall contain the following provisions: 1. OCTA shall be named as loss payees. 2. The insurer shall waive all subrogation rights against OCTA. 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 OCTA. Licensee shall furnish OCTA with original endorsements effecting coverage required by this clause. The endorsements are to be signed by a person authorized by that insurer to bind coverage on its behalf. All endorsements are to be received and approved by OCTA before Construction Work commences. Page 10 of 20 FILE: OC-225 17. Tests and Inspection. OCTA has 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 the appropriate regulatory agencies for all reasonable costs and expenses incurred due to the tests, inspections or any necessary corrective work and inspections thereafter. Licensee's liability pursuant to the preceding sentence shall be limited to situations where either Licensee is (or was) not in compliance with this Agreement or law or where OCTA had reasonable cause to believe Licensee was not in compliance. Except in the case of emergency, OCTA or SCRRA will provide Licensee with ten (10) days' written notice prior to undertaking said test and inspections and corrective work . 18. Hazardous/Toxic Materials Use and Indemnity. Licensee shall construct the Facility, and shall operate and maintain the License Property in compliance with all applicable federal, state and local environmental, health and/or safety-related laws, regulations, standards, decisions of the courts, permits or permit conditions, currently existing or as amended or adopted in the future which are or become applicable to Licensee or the License Property ("Environmental Laws"). Licensee shall not cause or permit, or allow any of Licensee's Parties to cause or permit, any Hazardous Materials to be brought upon, stored, used, generated, treated or disposed of on or about the 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 OCTA Property or adjacent property (i) which occurs due to the use and occupancy of the Facility or the OCTA Property by Licensee or Licensee's Parties, or (ii) which is made worse due to the act or failure to act of Licensee or Licensee's Parties. The foregoing indemnity shall be effective regardless of any negligence (whether active, passive, derivative, joint, concurring or comparative) on the part of Indemnitees, unless caused solely by the negligence or willful misconduct of Indemnitees; shall survive termination of this Agreement; and is in addition to any other rights or remedies which Indemnitees may have under the law or under this Agreement. In addition, in the event of any release on or contamination of the License Property, the OCTA Property and/or any adjacent property, whether or not owned by Page 11 of 20 FILE: OC-225 OCTA, Licensee, at its sole expense, shall promptly take all actions necessary to clean up all such affected property and to return the affected property to the condition existing prior to such release or contamination, to the satisfaction of OCTA and any governmental authorities having jurisdiction thereover. Upon the termination of this Agreement at any time and for any reason, Licensee shall, prior to the effective date of such termination, clean up and remove all Hazardous Materials in, on, under and/or about the OCTA Property, in accordance with the requirements of all Environmental Laws and to the satisfaction of OCTA and any governmental authorities having jurisdiction thereover. In all cases, Licensee shall immediately notify OCTA of any release on, or contamination of, the License Property or OCTA Property of which Licensee or any of Licensee's Parties becomes aware. 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 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 in, upon, over, under, across, or along 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 OCTA Property. Licensee shall not interfere with OCTA, SCRRA, and other freight and passenger railroad entities. Their compliance with all applicable Federal and State laws including, but not limited to, the requirement of the sounding of homs, when approaching crossings. 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. Page 12 of 20 FILE: OC-225 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, on or about the 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 Licensee or OCTA are required to or desire to give to the others shall be made in writing by certified mail, return receipt requested, postage prepaid, and addressed to such parties at the addresses set forth in the Basic License Provisions. The parties may change their addresses for the receipt of notice by giving written notice thereof to the other parties in the manner herein provided. Notices shall be effective on the date delivered to custody of U.S. Postal Service. 24.2 Non-Exclusive License. The license granted hereunder is not exclusive and OCTA specifically reserves the right to grant other licenses within the License Property. 24.3 Governing Law. This Agreement shall be governed by the laws of the State of California. The parties consent to the jurisdiction of the California courts with venue in Orange County. 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 amounts due to OCTA which are 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. 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 Page 13 of 20 FILE: OC-225 survive the expiration or earlier termination of this Agreement, including without limitation, all payment obligations with respect to License Fees and all obligations concerning the condition of the OCTA Property and the Facility. 24.7 Waiver of Covenants or Conditions. The waiver by one party of the performance of any covenant or condition under this Agreement shall not invalidate this Agreement nor shall it be considered a waiver by it of any other covenant or condition under this Agreement. 24.8 Amendment. This Agreement may be amended at any time by the written agreement of OCTA and Licensee. All amendments, changes, revisions, and discharges of this Agreement in whole or in part, and from time to time, shall be binding upon the parties, so long as the same shall be in writing and executed by the parties hereto. 24.9 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 give OCTA the right to immediately terminate this Agreement. 24.10 Attorney's Fees. In any judicial or arbitration proceeding involving performance under this Agreement, or default or breach thereof, the prevailing party shall be entitled to its reasonable attorney's fees and costs. 24.11 Nondiscrimination. Licensee certifies and agrees that all persons employed and any contractors retained, by either Licensee or Licensee's affiliates, subsidiaries, or holding companies, with respect to the License Property, are and shall be treated equally without regard to or because of race, religion, ancestry, national origin, disability or sex, and in compliance with all federal and state laws prohibiting discrimination in employment, including but not limited to the Civil Rights Act of 1964; the Unruh Civil Rights Act; the Cartwright Act; and the California Fair Employment Practices Act. 24.12 Further Acts. At 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 Waiver of Relocation Rights. Licensee hereby waives any right to relocation assistance, moving expenses, goodwill or other payments to which Licensee might otherwise be entitled under the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, as amended, 42 U.S.C. § 4601 et seg., and/or the California Relocation Assistance Law, as amended, Government Code § 7260 et seg., but for this waiver and OCTA's express right of termination. Page 14 of 20 FILE: OC-225 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 m ade b y L icensee t o t he L icense P roperty o r o ther s ums expended by Licensee in furtherance of this Agreement, the license granted hereunder is revocable by OCTA if Licensee breaches this Agreement, as set forth in Section 12 of this Agreement's General Provisions or if Licensee abandons the Facility or the License Property, as set forth in Section 11 of this Agreement's General License Provisions. 24.17 Entire Agreement. This Agreement constitutes 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. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their duly authorized representatives. ORANG OUnn Y R SP RTATION AUTHORITY B l— Stanley G. Phernar=q4 Executive Director of Construction & Engineering Date: APPRO ED AS TO FORM: By: Kennard R. Smart, Jr. General Counsel Date: Page 15 of 20 FILE: OC-225 CITY OF A ISTRANO By: Name: Jo Soto Title: May r Date: APPROVED AS FORM: By: Name: John haw Title: City Attomey Date: 7P1 o' ATTE T: By: Na e: argaret R. Monahan Titl C y Clerk Dat Page 16 of 20 it, C �W �, QQ k ggI (1 a '•r .Y � t f '�CICa- r� �✓ . of Trail NIL Y f dl_ fli i I FILE: OC-225 EXHIBIT "B" This Agreement is subject to the following additional terms and conditions: 1. If a natural disaster causes the railroad track located above the or adjacent to the Licensed Property to become inoperable, OCTA, at its sole and exclusive discretion, may terminate this Agreement, or suspend access to the License Property while repairs are underway, or allow the Licensee to relocate the bikeway/pedestrian underpass within the OCTA right-of-way at the sole cost and expense of the Licensee. 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), 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 of work within the rail right-of-way, then 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). The Licensee shall be responsible to make sure that the contractor has an approved and executed copy of Form No. 6 and delivered and secured approval of the insurance required by the two exhibits attached to SCRRA Form No. 6 prior to the contractor's entry on the rail right-of-way. 2. The Licensee agree to comply and to ensure that its contractor complies, at all times when on the rail right-of-way, with the rules and regulations contained in the current editions of the following documents which are "references" incorporated in this document as if they were set in full in this paragraph. These documents can be accessed through SCRRA's website www.metrolinktrains.com, ("About Metrolink", "Public Projects/Engineering" and "Agreements/Forms"). Right-of-Entry agreement, SCRRA Form No. 6 Rules and Requirements for Construction on Railroad Property, SCRRA Form No. 37 General Safety Regulations for Construction/Maintenance Activity on Railway Property SCRRA Engineering Standards. 3. The Licensee agrees to comply and to ensure that its contractor complies with instructions of SCRRA's inspectors and representatives, in relation to the proper manner of protection of the tracks and the traffic moving thereon, pole lines, signals and other property of SCRRA or its member agency tenants or licensees at or in the vicinity of the work, and shall perform the work at such times as not to Page 18 of 20 FILE: OC-225 endanger or interfere with safe and timely operation of SCRRA's track and other facilities. 4. If SCRRA requires Lessee/Licensee to relocate or modify its facilities for any railroad safety or operational reasons, Lessee/Licensee agrees to relocate or modify at its own expense upon receipt of appropriate notice. 5. The Licensee shall notify SCRRA's Maintenance-of-Way office at (909) 392- 4506) a minimum of five (5) working days in advance of any maintenance or construction activity on the right-of-way. Any SCRRA flagging or inspection required to protect SCRRA tracks or the traffic moving thereon shall be paid for by Licensee. 6. Temporary Traffic control plan shall be submitted to SCRRA for all activities located within or in the vicinity of highway-rail grade crossing. 7. Landscaping installed by the Licensee in the right-of-way shall meet SCRRA's Landscaping Design Guidelines. SCRRA's guidelines are available on the Metrolink website. UTILITIES 8. The Licensee shall be responsible for the location, protection, relocation and removal of any and all public or private surface, sub-surface and overhead lines and structures. The Licensee shall not damage, destroy or interfere with any existing encumbrances, licenses and rights (whether public or private), granted upon or relating to the railroad right-of-way. The Licensee shall call SCRRA's signal department at (909) 392-8476 to mark signal and communication cables and conduits. In case of signal emergencies or highway-rail grade crossing problems, the contractor shall call SCRRA's 24-hour signal emergency number 1-888-446-9721. 9. The Licensee shall obtain permission from any fiber optic, gas or oil lines that may be located along or across the right-of-way. U/G UTILITIES 10.For a period of two years following the first operation of trains by SCRRA over its tracks, the Licensee shall reimburse SCRRA for any costs incurred by SCRRA in correcting slides, settlements and/or erosion caused by the instability of the cut slopes or embankments, potholes, and for costs incurred by SCRRA in maintaining its tracks and other facilities, to the extent that said costs exceed such normal expense of maintenance work as would have been necessary if there had been no track work. Page 19 of 20 FILE: OC-225 BRIDGE MAINTENANCE 11.The Licensee shall, at its expense, maintain the portion of the bridge and appurtenances below the bridge seats, including piers and abutments, retaining walls, lighting, drainage system, bikeway pavement, bikeway facilities, curb and gutter, striping, signage and appurtenances. The Licensee shall remove graffiti from the bikeway and retaining walls on a regular basis. Page 20 of 20 EXHIBIT "C" LEGAL DESCRIPTION THAT PORUM .OF TME LAND IN THE CITY OF SAN JUAN CAPISTRANO, COUNTY OF ORANGE �TlX1 OF CALIFORNIA SHOWN AS "A.T:&S.F. RAILROAD, O.R. 316-85" bN' &WOM, OF SURVEY NO. 87-1004 FILED IN RECORD .OF SURVEYS i BOO 1:22., I�X1S- 27—#6.1N THE OFFICE OF THE GU.UNTY RECORDER OF SAID COUNTY, DESdRt1ED AS FOLLDWS: a - IN#[Ghd7AoTETHE MOST SOURHE#RLY CORN?=R OF P,,AFRCEL "'B" OF THE PARCEL I�kA 6fLE 1 Its} G L 6 SP ROOK '141 PAStS SFO 41 INV 7WE_OPFIGE OF THE ' � F '` Y A wN R �F 5S'UlI VEY, ' r I� 4FSfID PAR iJ� 112'tS6y tyJST ?c• S a 3 a1 E Fi .LINE iT,10 ® +1 x1 . w ArL a BS .DF t MI. Vol HA R s •1 'aIC © `C i 91 L?AI&TE OF rl .° SET, TIAOEfiSI" EAT. 55 FsEE 1'J 1 , L I ,, OF 13%4l) O_:R �..��c 311-6 $S°' fold 'T!?IE SQU ERLY OL ' I Al L d ; fh7Issl410E .�kL S 1b Ffh�T RL Y LINE ! k =Y (rj O2'06`W EAST 35.30 ET TO f1 IE POINT OF I£. CONTAINIt4G: 5527 StdU;ARE FEET OR 0.1.34 ACRES, 1MORE OR LESS. ALL AS 'SHOWN AAAI EXFIIBIT "B", TETE SKETCH TO ACCOMPANY THIS DESCRIPTION, ATTACHED HERETO AND 'MADE A PART HEREOF. PREPARED BY: D. k14RK• Yl4Re; P.LS 5031 � MY LICENSEi'PIRES` 12-31-05 EXP. 12-31-05 R 4 " Q qT N0. 5031 �� C\dwg\NW"\9C BIKE TRAIL\9C-CIP124 BIKE EASEMENT E%B.owg.6/1012 10:10:32 PM,HP LauJ2t 61'E,::20.WARE ENTERPRISE—IN: Part. l n+ 7 N SKETCH TO ACCOMPANY LEGAL DESCRIPTION .4.. W.*,#" M.E VARIES 25 SCALE: 1 WCH = 20 FEET MUM N83-57-33-W (W I'- F Nib 448753'01 IWJ 53.02 25.1W '43r N Ir �dti "a 05 sl SPa e, -9R ML b �I 195 N87*53'01"W SX-CIF EX B.dwg PREPARED BY: Ware Enterprises, Inc a 0 2109 Vic Govilan EXP. 12-31-05 Son Clemente, CA 92673 Voice 949-661 -9150' Fax: 949-366-9611 D. MARK WARE P.L.S 5031 FoF CA U EXP. DATE: 12-31 -05 C:Ww,NCV WDWC BIKE TR LZJC CIP12a 61E EASEMENT EX KOwg,6118/2W 10:11:50AM,HPUs lk'6P. 1:M,WMEEN UftISE—,IN: Pace 2 of 2