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05-0628_OC TRANSPORTATION AUTHORITY_License Agreement (2)RECAP: City of San Juan Capistrano August 16, 2005 Page: 4 4. Consideration of Award of Engineering Design Services Agreement for the San Juan Creek Water Line Crossing at Via Estenaga (RBF Consulting) (600.30): Award of the engineering design services agreement for the San Juan Creek Crossing at Vie Estenaga to RBF Consulting, Inc., in the amount of $154,636, approved. 8-17-05 issued signed agreement to consultant. 5. Consideration of Award of Engineering Design Services Agreement for the San Juan Basin 20 -Inch Line Replacement (600.30): Award of the engineering design services agreement for the San Juan Basin 20 -inch Line Replacement to RBF Consulting, Inc., in the amount of $134,857, approved. 8-17-05 issued signed agreement to consultant. 6. Consideration of Approval of License Agreement; Amendment to Right of Entry Permit — Suncal Project (600.50): License agreement between the City of San Juan Capistrano and the Orange County Transportation Authority for the purpose of allowing construction of a drainage system underneath an existing railroad area approved,, Amendment to right of entry permit approved; and the Mayor authorized to execute the approved documents. 8-17-05 original amendment to right of entry not yet received from Sam S. 8/24/05 right of entry agreement forwarded to OC recorder. License agreement (executed by SJC officials only) forwarded to OCTA. 7. Consideration of Approval of Plans and Specifications and Authorization to Receive Bids — Rancho Viejo Road and Highland Drive Traffic Signal Installation (CIP No. 405) (600.30): Plans and specifications for the Rancho Viejo Road and Highland Drive Traffic Signal Installation project approved; and staff authorized to receive bids for the project. • 0 File: OC -168 LICENSE AGREEMENT This LICENSE AGREEMENT ("Agreement") is made and entered into as of June 28, 2005 by and between the ORANGE COUNTY TRANSPORTATION AUTHORITY, a public entity ("OCTA"), and and the CITY OF SAN JUAN CAPISTRANO ("Licensee"), upon and in consideration of the agreements, covenants, terms and conditions below: 1 2. 3. 4. 5. 91 7 PART I. - BASIC LICENSE PROVISIONS Description of License Property: A portion of the OCTA Orange Subdivision railroad right of way from approximately railroad mile post 198.00, located in the City of San Juan Capistrano, CA, as shown in Exhibit "A", attached. Approximate area: 500 +/- square feet. Use of License Property: Installation of a storm drain only, and no other uses. Commencement Date: August 1, 2005. Term: Month -to -Month License Fees: A. Base License Fee: Waived B. Additional License Fee: One time processing fee, non-refundable: Insurance Amount: See Exhibit "B" OCTA's Address: ORANGE COUNTY TRANSPORTATION AUTHORITY 550 S. Main Street P. O. Box 14184 Orange, CA 92863-1584 Licensee's Address: CITY OF SAN JUAN CAPISTRANO Page 2 of 16 $500.00 • File: OC -168 32400 Paseo Adelanto San Juan Capistrano, CA 92675 9. Facility: Concrete storm drain (7' in diameter) at 7' from base of rail to top of casing. 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 a non-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. Page 3 of 16 0 2. Payments • File: OC -168 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 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 due and payable without demand. 2.2 License Fee Adjustment. Intentionally Ommited 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 shall be performed (a) at Licensee's sole cost and expense; (b) in accordance with any and all applicable laws, rules and regulations (including the OCTA's rules and regulations), and (c) 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 Page 4 of 16 • • File: OC -168 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 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 Property or the Facility, including, but not limited to, costs incurred by OCTA in furnishing any materials or performing any labor, reviewing Licensee's Work plans and/or inspecting any Construction Work, installing or removing protection beneath or along OCTA's tracks, furnishing of watchmen, flagmen and inspectors as OCTA deems necessary and such other items or acts as OCTA in its sole discretion deems necessary to monitor or aid in compliance with this Agreement. 7. Liens. Licensee will fully and promptly pay for all materials joined or affixed to Facility or the Licensed Property, and fully and promptly pay all persons who perform labor upon said Facility or the Licensed Property. Licensee shall not suffer or permit to be filed or enforced against the Licensed Property or the Facility, or any part thereof, any mechanics', materialmen's, contractors', or subcontractors' liens or stop notices arising from, or any claim for damage growing out of, any testing, investigation, maintenance or 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, Page 5 of 16 • • File: OC -168 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, 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. All fencing and/or landscaping work shall be done in accordance with the provisions of Sections 4 and 5 above and will be subject to the maintenance and repair provisions of Section 8 above. 10. Use. The License Property and the Faciiity 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, Page 6 of 16 • • File: OC-168 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 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 from any liability or obligation hereunder, whether of indemnity or otherwise, resulting from any acts, omissions or events happening prior to the date the Facility is removed and the OCTA Property is restored. 14. Indemnification. Except for AUTHORITY's sole negligence, CITY shall indemnify, defend and hold harmless AUTHORITY, 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 CITY, 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, Page 7 of 16 • • File: OC -168 on behalf of itself and its Personnel (as defined in Section 14) as a material part of the consideration for this Agreement, hereby waives all claims and demands against OCTA for any such loss, damage or injury of Licensee and/or its Personnel. In that connection, Licensee waives the benefit of California Civil Code Section 1542, which provides as follows: A general release does not extend to claims 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 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. 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 Page 8 of 16 0 • File: OC -168 the courts, permits or permit conditions, currently existing or as amended or adopted in the future which are or become applicable to Licensee or the License Property ("Environmental Laws"). Licensee shall not cause or permit, or allow any of Licensee's Parties to cause or permit, any Hazardous Materials to be brought upon, stored, used, generated, treated or disposed of on or about the brought upon, stored, used, generated, treated or disposed of on the License Property or the OCTA Property. As used herein, "Hazardous Materials" means any chemical, substance or material which is now or becomes in the future listed, defined or regulated in any manner by any Environmental Law based upon, directly or indirectly, its properties or effects. 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 Page 9 of 16 • • File: OC -168 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 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 parry 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. Page 10 of 16 • • File: OC -168 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. 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. Page 11 of 16 • File: OC -168 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 sec., and/or the California Relocation Assistance Law, as amended, Government Code § 7260 et seq., but for this waiver and OCTA's express right of termination. 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 A & B 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 Exhibit "B", if any, are hereby incorporated by this reference as if fully set forth herein. Page 12 of 16 • • File: OC -168 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their duly authorized representatives as of the date first written above. A..01 "ATION AUTHORITY Executive Director of Constructk r-rEngineering APPRO AS TO FORM: By: Ke nard R. Smart, J . General Counsel LICENSEE CITY OF SAN JUAN CAPISTRANO Name: ;/ r >- APPROV S TO ORM: By: John haw City A torney Page 13 of 16 BIT "A" LICENSE PROPERTY saga asnecT sravm rwm ,ter. n WRatw LINE/BRANCH: COUNTY: MILE POST: LICENSEE: Orange Orange 198.00 CITY OF SAN JUAN ra CAPISTRANO LOCATION: THOMAS BROS. MAP REF.: San Juan Capistrano Page:972 Col./Row:B-4 OCTA AREA: NEAREST CROSS STREET: ORANGE COUNTY CONTRACT NO.: 500+/- sq.{f Camino Capistrano TRANSPORTATION AUTHORITY P.O. BOX 14184 OC -168 USE: SCALE: DATE: Underground storm drain 550 SOUTH MAIN STREET ORANGE, CA 92863-1584 N -T -S 6128/05 TEL. NO. (7141560-6282 This sketch is not a representation or warranty of the extent of, or boundaries of OCTA property rights 1po4(6 /4 6f 14 • File: OC -168 EXHIBIT "B" This License is subject to the following additional terms and conditions: 1. All Licensee's contractors shall enter into a Right of Entry agreement with the Southern California Regional Rail Authority (SCRRA) before performing any activity on railroad property. 2. All Licensee's contractors, at their sole cost and expense, shall obtain and maintain in force and effect insurance as required by SCRRA during the entire construction period. Contractors shall furnish copies of the insurance certificates to all affected railroads. 3. Licensee and/or Licensee's contractor(s) must contact SCRRA's Right of Way Engineer (909/392-4506) to arrange for inspection, flagging, and/or other protective services no less than five working days prior to beginning work when any: a) Personnel will be operating within twenty feet of the nearest rail or within the railroad right-of-way. This includes aerial as well as subsurface work. b) Equipment will be operating within the OCTA right of way, or when any erection or construction activities will be undertaken, regardless of elevation above or below track, c) Excavation will be undertaken on the OCTA right of way, d) Street construction and maintenance activities requiring temporary work area traffic control. Prior notification does not guarantee the availability of a flag person for the proposed date of activity. 4. The Licensee and/or Licensee's contractor(s) shall be responsible for the location and protection of any and all surface, sub -surface, and overhead structures. 5. The contractor shall call SCRRA's signal department (909)869-4100 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. Page 15 of 16 • • File: OC -168 6. The Licensee shall obtain permission from any fiber optic, gas or oil lines that may be located along or across the right-of-way. 7. The face of jacking and receiving pits shall be located a minimum of 25 -feet from the centerline of the nearest track measured at right angle of the track. B. Licensee shall prepare and submit traffic control plan for SCRRA approval for projects that will affect vehicular traffic at an existing highway -rail grade crossing. 9. If SCRRA shall deem it necessary in the future, to build additional track, tracks or other facilities in connection with the operation of its railroad, at the request of SCRRA, the Licensee shall modify, at its own expense, the proposed utility and/or roadway to conform to the rail line. Page 16 of 16 JLL-29-2005 11:29 • 0 RANSWER & riSSOCIFTES AMENDMENT TO Agency: CA Dept of Highway Patrol Project Capistrano Area Office RIGHT OF ENTRY PERMIT File: TRO3 057-E P.02 This AMENDMENT TO RIGHT OF ENTRY PERMIT Is made and entered into this A/— day of u 1 20(15, between the STATE OF CALIFORNIA, acting by and through its Director of the of General Services, with the approved of the California Department of Highway Patrol, hereinafter called State, and the CITY OF SAN JUAN CAPISTRANO, Its officers, employees, agents and contractors, heralnafter called Permittee. WHEREAS, State and Permittee executed a Right Of Entry Permit on April 1, 2006, allowing Per. . to In" an underground pipeline for public storm water drainage across a portion of 32851 Cerdno Capistrano, City of San Juan Capistrano, County of Orange, California; and, WHEREAS. Said Permit term ends on June 30, 2005; and, WHEREAS, Permittee requires additional time to complete construction objectives; and. WHEREAS. it is mutually intended that said Permit term be extended for three (3) months. NOW, THEREFORE, State, in consideration of the own of $3,100.00. receipt of whlch Is aoknowladged, and Permittee hereby amend that Right Of Entry Permit, the first two papas Of which are attached hereto as E)MR KA', as follows; the term ending date as sat forth in provision 4 shall be September 30, 2005. Except as amendetl herainabove. all of the terms and oondfflwe of acid Permit shall remain in full force and affeCL STATE OF CALIFORNIA Department of General Services CITY OF SAN JUAN CAPISTRANO APPROVED: CA of High y PatrA ey: By: Tale: Mayor ATTACHMENT ILL -29-2005 1130 H NSPoCER & ASSOCIATES P.03 EXHIBIT "A" Agency. CA Dept of Highway Petrol RIGHT OF ENTRY PERMIT I Project Capistrano Area Olhce File: TRO3 057-E This RIGHT OF ENTRY PERMIT Is made and entered into this kr day of �2ee+r, between the STATE OF CALIFORNIA, acting by and through fie Director of the mnerht of General Services. with the approval of the California Department: of Highway Patrol, hersitatler caped State, and the CITY OF SAN JUAN CAPISTRANO, its officers, employees, agents and contractors, hereinafter called Permittee. State hereby gives permission to Permittee to enter upon that readproperty, within 32951 Camino Capistrano, City of Sen Juen Capistrano, County of Orange, as outlined in red on the attached Exhibit 'A" for the purpose of constructing an underground pipeline for public stone water drainage. This Right of Entry is subject to the following tonne and conditions: 1. This Right of Entry is subject to existing connects. losses, licenses, encumbrances and claims which may affect said reel property. 2. Permhsse waives all claim against State, its officers, agents and employees, for loss or damage caused by, arising out of, or in any way oonnscled with the exercise of this Right of Entry, and Pemithes agrees to save harmless, Indemnity, and defend State, Its oifwers. ageme and employees from any and all loss, damage or liability which may be suffered or incurred by State, its officers, agents and employese caused by, arising out of, or in any way connected with exercise by Pennines of the rights hereby granted, except these arising out of the sole negligence of State. 3. State reserves the right to use said reel property in any manner, provided such use does not unreasonably interfere with PermtaWs rights herein. 4. This Right of Entry shall only be for the period beginning April t, 2005, and ending June 30, 2005. 5. Permittee @hell execute and return to State, prior to May 1, 2005, a permanent Agreement and Grant of Easement substantially as shown on the attached Exlxbh'B'. State shall thereafter, and prior to June 30, 2005, execute and provide Permil with said Agreement. Permittee shall promptly record said Agreement and provide State with two complete, legible copies of the recorded instrument 6. Access to said real property shag be from Camino Capistrano, the abutting public road, and/or adjoining /ands of others, and not from State's remainder property. 7. Prior to any entry upon said real property for any of the purposes hereinabove sat forth, ParmMso shall notify State by written or oral notice to the authorities in charge of Capistrano Area Office, a state law enforcement facility. S. In making any excavation on said real property. Permluse shall make the same In such manner as will cause the least injury to the surface of the ground around such excavation, and shall replace the earth so removed by it and restore the surface of the ground and any improvement thereon to all neer the same condition all they were prior to such excavation all is practicable. PAGE 1 OF 2 PAGES 0 JUL-29-2005 11:30 HUNSRISR & RSMCIRTES EXHIBIT "A" 0 P.04 g. Upon breach by Pemdttee of security fencing and other such improvement vdtfim said reel property which provide security for Capistrano Area Office, Permittee shall Immediately Install such temporary fencing and other improvements as deemed neoeseary by State to retain security for Capistrano Area Office. Permitted shall maintain such temporary fencing and Improvemams until completion of the restoration by Permilte of those irrp wmmenta breeched, at which time such temporary fenoing and improvements shelf be removed. STATE OF CALIFORNIA Dspemnrea of General Services CITY OF SAN JUAN CAPISTRANO APPROVED: California Department of FtrghwayyPatrol ru • This: PAC=E 2 OF 2 PAGES TOTPL P.04 32400 PASEO ADELANTO SAN JUAN CAPISTRANO, CA 92675 (949) 493-1171 (949) 493-1053 FAx www.sanjuancapistrano.org TRANSMITTAL TO: Orange County Transportation Authority Attention: Stanley G. Phernambucq 550 S. Main Street PO Box 14184 Orange, CA 92863-1584 FROM: Meg Monahan, City Clerk (949) 443-6308 RE: License Agreement (OCTA Contract No. 168) SJC Project Name: Suncal DATE: August 24, 2005 MEMBERS OF THE CITY COUNCIL This license agreement was approved by the City Council on August 16, 2005. SAM ALLEVATO DIANE BATHGATE WYATT HART JOE SOTO DAVID M. SWERDLIN Enclosed, please find (1) original license agreement, fully executed by officials at San Juan Capistrano. It needs to be executed by OCTA officials. It is for your records. Cc: Sam Shoucair, Senior Engineer (949) 443-6355 (project manager) Nasser Abbaszadeh, Engineering & Building Director San Juan Capistrano: Preserving the Past to Enhance the Future 1�^) Pnnte on recycletl Paper LA AGENDA REPORT TO: Dave Adams, City Manager 901 • 8/16/2005 D6 FROM: John R. Shaw, City Attorney SUBJECT: Consideration of Approval of License Agreement; Amendment to Right of Entry Permit /Suncal Project RECOMMENDATION: By motion, approve and authorize Mayor to execute attached license agreement between the City of San Juan Capistrano and the Orange County Transportation Authority for the purpose of allowing construction of a drainage system underneath an existing railroad area; and Amendment to Right of Entry Permit. SITUATION: As part of the development of Tentative Tracts 14196, 15609, Pacifica San Juan Development (SunCal), SunCal was conditioned by the City to reconstruct the existing storm drain system to convey storm flows safely from the Pacifica San Juan Development into the City's drainage system. This was accomplished by designing and obtaining City approval of a parallel system which would convey storm flows from an existing 6'x6' Reinforced Concrete Box that crosses the 1-5 FWY and travels through the parking lot areas on the California Highway Patrol property and through the Caltrans' yard. This parallel system will continue underneath the existing railroad through a proposed lacked 84" storm drain pipe. After crossing the railroad, the storm drain would connect with an existing 84" storm drain system and would transition to a TH x 13'W RCB which would outlet into San Juan Creek. In order to accomplish the construction of this parallel system, it is necessary that a license agreement be entered into between City and OCTA which will authorize use of a certain designated land area under the railroad tracks to accommodate the parallel system. The attached license agreement accomplishes this purpose. In addition, a companion Amendment to Right of Entry Permit between City and the State of California is also required in order to construct and access the storm drain facilities running across the California Highway Patrol property. The engineering department has reviewed the speck engineering aspects of theses agreements and recommends them for approval. 0 0 RECOMMENDATION: By motion, approve and authorize Mayor to execute attached license agreement between the City of San Juan Capistrano and the Orange County Transportation Authority for the purpose of allowing construction of a drainage system underneath an existing railroad area; and Amendment to Right of Entry Permit. Res a ully S fitted, Joh .Sh w Ci ttorney Attachment: License Agreement Amendment to Right of Entry Permit 0 LICENSE AGREEMENT • File: OC -168 This LICENSE AGREEMENT ("Agreement') is made and entered into as of June 28, 2005 by and between the ORANGE COUNTY TRANSPORTATION AUTHORITY, a public entity ("OCTA'), and and the CITY OF SAN JUAN CAPISTRANO ("Licensee"), upon and in consideration of the agreements, covenants, terms and conditions below: 1 2. 3. 4. 5. 91 7 1.1 PART I. - BASIC LICENSE PROVISIONS Description of License Property: A portion of the OCTA Orange Subdivision railroad right of way from approximately railroad mile post 198.00, located in the City of San Juan Capistrano, CA, as shown in Exhibit "A". attached. Approximate area: 500 +/- square feet. Use of License Property: Installation of a storm drain only, and no other uses. Commencement Date: August 1, 2005. Term: Month -to -Month License Fees: A. Base License Fee: Waived B. Additional License Fee: One time processing fee, non-refundable: Insurance Amount: OCTA's Address: See Exhibit "B" ORANGE COUNTY TRANSPORTATION AUTHORITY 550 S. Main Street P. O. Box 14184 Orange, CA 92863-1584 Licensee's Address: CITY OF SAN JUAN CAPISTRANO Page 2 of 16 $500.00 • • File: OC -168 32400 Paseo Adelanto San Juan Capistrano, CA 92675 9. Facility: Concrete storm drain (7' in diameter) at 7' from base of rail to top of casing. 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 11 - GENERAL LICENSE PROVISIONS 1. License/Term. License. OCTA hereby grants to Licensee a non-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 "Facility"), 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. Page 3 of 16 • 2. Payments • File: OC -168 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 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 due and payable without demand. 2.2 License Fee Adiustment. Intentionally Ommited 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 shall be performed (a) at Licensee's sole cost and expense; (b) in accordance with any and all applicable laws, rules and regulations (including the OCTA's rules and regulations), and (c) 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 Page 4 of 16 • • File: OC -168 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 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 Property or the Facility, including, but not limited to, costs incurred by OCTA in furnishing any materials or performing any labor, reviewing Licensee's Work plans and/or inspecting any Construction Work, installing or removing protection beneath or along OCTA's tracks, furnishing of watchmen, flagmen and inspectors as OCTA deems necessary and such other items or acts as OCTA in its sole discretion deems necessary to monitor or aid in compliance with this Agreement. 7. Liens. Licensee will fully and promptly pay for all materials joined or affixed to Facility or the Licensed Property, and fully and promptly pay all persons who perform labor upon said Facility or the Licensed Property. Licensee shall not suffer or permit to be filed or enforced against the Licensed Property or the Facility, or any part thereof, any mechanics', materialmen's, contractors', or subcontractors' liens or stop notices arising from, or any claim for damage growing out of, any testing, investigation, maintenance or 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, Page 5 of 16 • • File: OC -168 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, 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. All fencing and/or landscaping work shall be done in accordance with the provisions of Sections 4 and 5 above and will be subject to the maintenance and repair provisions of Section 8 above. 10. Use. The License Property and the Facility shall be used only for the purposes specified in Item 2 of the Basic License Provisions and for such lawful purposes as may be directly incidental thereto. No change shall be made by Licensee,in the use of the License Property or the Facility without OCTA's prior written approval. 11. Abandonment. Should Licensee at 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, Page 6 of 16 • • File: OC -168 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 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 from any liability or obligation hereunder, whether of indemnity or otherwise, resulting from any acts, omissions or events happening prior to the date the Facility is removed and the OCTA Property is restored. 14. Indemnification. Except for AUTHORITY's sole negligence, CITY shall indemnify, defend and hold harmless AUTHORITY, 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 CITY, 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, Page 7 of 16 • • File: OC -168 on behalf of itself and its Personnel (as defined in Section 14) as a material part of the consideration for this Agreement, hereby waives all claims and demands against OCTA for any such loss, damage or injury of Licensee and/or its Personnel. In that connection, Licensee waives the benefit of California Civil Code Section 1542, which provides as follows: A general release does not extend to claims 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 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. 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 Page 8 of 16 0 • File: OC -168 the courts, permits or permit conditions, currently existing or as amended or adopted in the future which are or become applicable to Licensee or the License Property ("Environmental Laws"). Licensee shall not cause or permit, or allow any of Licensee's Parties to cause or permit, any Hazardous Materials to be brought upon, stored, used, generated, treated or disposed of on or about the brought upon, stored, used, generated, treated or disposed of on the License Property or the OCTA Property. As used herein, "Hazardous Materials" means any chemical, substance or material which is now or becomes in the future listed, defined or regulated in any manner by any Environmental Law based upon, directly or indirectly, its properties or effects. 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 Page 9 of 16 • • File: OC -168 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 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 parry 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. Page 10 of 16 • • File: OC -168 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. 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. Page 11 of 16 • • File: OC -168 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 seq., and/or the California Relocation Assistance Law, as amended, Government Code § 7260 et seq., but for this waiver and OCTA's express right of termination. 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 A & B 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 Exhibit "B", if any, are hereby incorporated by this reference as if fully set forth herein. Page 12 of 16 U • File: OC -168 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 LIM Stanley G. Phernambucq Executive Director of Construction & Engineering APPROVED AS TO FORM: 0 Kennard R. Smart, Jr. General Counsel LICENSEE CITY OF SAN JUAN CAPISTRANO 0 Name: Title: APPROV mz By: John Shaw City A torney Page 13 of 16 0 EXHIBIT "B" • File: OC -168 This License is subject to the following additional terms and conditions: 1. All Licensee's contractors shall enter into a Right of Entry agreement with the Southern California Regional Rail Authority (SCRRA) before performing any activity on railroad property. 2. All Licensee's contractors, at their sole cost and expense, shall obtain and maintain in force and effect insurance as required by SCRRA during the entire construction period. Contractors shall furnish copies of the insurance certificates to all affected railroads. 3. Licensee and/or Licensee's contractor(s) must contact SCRRA's Right of Way Engineer (909/392-4506) to arrange for inspection, flagging, and/or other protective services no less than five working days prior to beginning work when any: a) Personnel will be operating within twenty feet of the nearest rail or within the railroad right-of-way. This includes aerial as well as subsurface work. b) Equipment will be operating within the OCTA right of way, or when any erection or construction activities will be undertaken, regardless of elevation above or below track, c) Excavation will be undertaken on the OCTA right of way, d) Street construction and maintenance activities requiring temporary work area traffic control. Prior notification does not guarantee the availability of a flag person for the proposed date of activity. 4. The Licensee and/or Licensee's contractor(s) shall be responsible for the location and protection of any and all surface, sub -surface, and overhead structures. 5. The contractor shall call SCRRA's signal department (909)869-4100 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. Page 15 of 16 0 • File: OC -168 6. The Licensee shall obtain permission from any fiber optic, gas or oil lines that may be located along or across the right-of-way. 7. The face of jacking and receiving pits shall be located a minimum of 25 -feet from the centerline of the nearest track measured at right angle of the track. 8. Licensee shall prepare and submit traffic control plan for SCRRA approval for projects that will affect vehicular traffic at an existing highway -rail grade crossing. 9. If SCRRA shall deem it necessary in the future, to build additional track, tracks or other facilities in connection with the operation of its railroad, at the request of SCRRA, the Licensee shall modify, at its own expense, the proposed utility and/or roadway to conform to the rail line. Page 16 of 16 r1 U -.. JUL-29-2005 11:29 H-MMER & ASSOC I RTES AMENDMENTTO RIGHT OF ENTRY PERMIT n U Agency: CA Dept of Highway Patrol Project: Capistrano Area Office File: TRO3 057-E P.02 This AMENDMENT TO RIQHr OF ENTRY PERMIT M made and entered into this AC:—day of u 1 2005, between the STATE OF CAWFORNIA, acting by and through its Director of the of Genual Services, with the approval of the California Department of Highway Patrol, horelnefter calved State, and the CITY OF SAN JUAN CAPISTRANO, its of"oers, employees, agents and Contractors. hereinafter Called Permittee, WHEREAS, State and Permittee executed a Right Of Entry Permit on April T, 2005, allowing Penniase to wate0 an undaMmund pipetive for public scam water drainegs across a portion of 32861 Camino Capistrano, City of San Juan Capistrano, County of Orange, Calilortls; and, WHEREAS, said Permit term ands on June 30, 2006; and, WHEREAS, Pem*Aee requires additional time to coffV to oonstmx tion objeck~, and. WHEREAS, it is mutually intended that said Permit term be extended for three (3) months. NOW, THEREFORE, Stats, In oafaderatwn Of the awn Of $3,100.00, TW* pt of whloh Is adrnowlOdged, and Perrlltles hereby amend that Right Of Entry Permit the first two Pages at Which aro attached hereto as E-41M'A', as follows: the term ending data as ad forth In provlalon 4 atletl be SepOWnbar30,2O05. ExcePt as amended hersinabove, all of the terms and conditions of said Permit shall remain in full fame and effect STATE OF CALIFORNIA Department of General Services CITY OF SAN JUAN CAPISTRANO APPROVED: CA_Tnt of Hlgi y01 G By: rwe: Mayor ATTACHMENT • 0 JUL-29-2005 1130 F0..W.W R & RSSOCIATES P.03 EXHIBIT "A" Agency. CA Dept of Highway Patrol RIGHT OF ENTRY PERMIT I Project Capistrano Area Office File: TR03 057•E This RIGHT OF ENTRY PERMIT Is made and entwed into this Lr day of —26ET, between the STATE OF CALIFORNIA, acting by and through Its Director d the nmwn d General Services, with the approval of the California Department of Highway Patrol, hereinafter called State, and the CITY OF SAN JUAN CAPISTRANO, its officers, employees, agents and contractors. hereinafter called Permittee. State hereby gives permission to Permute to enter upon that reel property within 32951 Camino Capistrano, City of Sen Juan Capistrano, County of Orange, as outlined in red on the attached Exhibit W for the purpose of constructing an underground pipeline for pubic storm water drainage. This Right of Entry is subject to the following terms and conditions: t. This R'gM of Entry is subject to existing txxraads, vises, licenses, encumbrances and claims which may affect said nal property. 2. Permittee wafts all claim against State, its officers, agents and employees, for loss or damage caused by, anteing out of, or in any way connected with the exercise of this Right of Entry, and Permittee agrees to save harmless, indemnify, and defend State, Its officers, agents and employees from say and all loss, damage or liability which may be suffered or incurred by State, its officers, agents and employees caused by, arising out of, or in any way cornrected with exercise by Permittee of the rights hereby granted, except those arising out of the sole negligence of State. 3. State reserves the right to use said reel property in any manner, provided such use does not unreasonably interfere with Permiave's rights harsh. 4. This Right of Fntry shell only be for the period beginning April 1, 2005, and ending June 30, 2003. S. Permittee shelf execute and return to State, prior to May 1, 2005, a permanent Agreement and Gram of Easement substantially as shown on the attached Exhibit W. Stats shelf thereafter, and prior to June 30, 2005, execute and provide Pwmhtea with said Agreement. Permit[" &hall promptly record said Agreement and provide State with two complete, legible copies of the recorded insWment. 6. Access to said reel property shall be from Camino Capistrano, the abutting public road, andror adjoining lands of others, and not from State's remainder property. 7. Prior to any entry upon said real property for any of the purposes herainabove set forth, Permittee shag notify State by written or oral notice to the authorities in charge of Capistrano Area Office, a state law enforcement facility. 8. In making any excavation on said reel property, Permittee at" make the same in such manner as wig cause the least injury to the surfma of the ground around such excavation, and "ll replace the earth so removed by it and restore the surface of the ground and any improvement thereon to aa near the same condition as they were prior to such excavation es is practicable. PAGE 1 OF 2 PAGES 9 C� JUL-29-2085 1130 M.r AKER 8 ASSOC I RTES P.04 EXHIBIT "A" 8. Upon breach by Pemdttee of sacu lty fencing and Omer such Improvements within said real property which provide eswriry, for Capistrano Area Office, Pemlibee shell Immediately Install such temporary fencing arta other improvements as deemed neoseeary by State to retain secuAty, for Capistrano Area Office. Permfaed "I malmain such temporary fencing and improvements until oompletlon of the rastoratton by Permittee of those irprovenlems branched, at which tlms such temporary terming and Improvements shall be removed. STATE OF CALIFORNIA CITY OF SAN JUAN CAPISTRANO Department of General Services BY: BY.— Tide! Y Title: AfAy44r-L 7Z-,, 14r.T.,;,. -wow TOO: J APPROVED: California Department at Fllgttvpy trot By: y By: T" _._'� Title: PACE 2 OF 2 PACES TOTAL P.04