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HomeMy WebLinkAbout2018 CON San Diego Metropolitan Transit System MTS - Railroad Right-of-Way License Agreement - 8th and 24th StreetMTS Doc. No. L1436.0-18 LICENSE AGREEMENT THIS RAILROAD RIGHT-OF-WAY LICENSE (License), made this 27th day of March 2018 (the "COMMENCEMENT DATE"). between the San Diego Metropolitan Transit System (MTS. (hereinafter referred to as "LICENSOR") and City of National City (hereinafter referred to as "LICENSEE"). WITNESSETH, that LICENSOR and LICENSEE, covenant and agree as follows: LICENSOR hereby licenses LICENSEE to use. subject to the rights and easements hereinafter accepted and reserved and upon the terms and conditions hereinafter set forth, the PREMISES within the "License Area" locations shown at the 8th Street and 24th Street MTS Transit Centers in National City on the Exhibit "A" Vicinity Map attached hereto and made a part hereof, and for the exclusive purpose of the LICENSEE improvements and uses (collectively referred to as "IMPROVEMENTS") depicted on Exhibit "B" attached hereto and made a part hereof and as described below in the following paragraph: Construction, use, operation, maintenance, repair and ownership of two 20" x 20" wayfinding map panel signs mounted on 3" aluminum square channel sign posts. The map signs shall show points of interest in National City. LICENSEE shall not use or actively permit the PREMISES to be used for any other purpose whatsoever, without the prior written consent of LICENSOR. LICENSEE shall, at its own cost and subject to the supervision and control of LICENSOR'S appointed representative, construct and maintain the IMPROVEMENTS in such a manner and of such material that it will not at any time be a source of danger or interference with the present or future operation of any facilities owned and/or operated by LICENSOR or with LICENSOR'S PREMISES. LICENSEE shall reimburse LICENSOR for any expenses reasonably incurred by LICENSOR for flagman to protect its traffic during installation of the IMPROVEMENTS and for any and all other expense incurred by Licensor on account of the IMPROVEMENTS. 6. LICENSEE agrees to indemnify, defend and hold harmless LICENSOR, San Diego Trolley, Inc. (SDTI), San Diego and Imperial Valley Railroad (SD&IV), and the San Diego Transit Corporation (SDTC), their directors. officers, agents, contractors, and employees (collectively referred to as "MTS Indemnitees"), from any and all liability, loss, expense (including reasonable attorneys' fees and other defense costs, demands. suits, liens, damages, costs, claims, including, but not limited to, third party claims, claims for bodily injury, death, personal injury, or property damage, that are incurred by or asserted against the MTS Indemnitees arising out of or connected with this License, the maintenance of any device or appurtenance implemented under this License, and any negligent acts or omissions on the part of the LICENSEE. its City Council, officers, agents, contractors, sub -licensees, employees or invitees. LICENSOR agrees to indemnify, defend and hold harmless LICENSEE and its City Council members, officers, agents, employees, volunteers and contractors (collectively referred to as "City Indemnitees"), from any and all liability, loss, expense (including reasonable attorneys' fees and other defense costs), demands, suits, liens, damages, costs, claims, including, but not limited to, third party claims, claims for bodily injury, death, personal injury, or property damage, that are incurred by or asserted against the City Indemnitees arising out of or connected with any negligent acts or omissions on the part of the LICENSOR, their boards, officers, agents, contractors, employees or invitees. In the event of any acts or omissions of concurrent negligence which results in the filing of a demand, claim, or complaint against the parties, each party shall defend and represent itself such that each party shall bear its own costs and attorneys' fees. 7. LICENSEE shall, at LICENSEE'S own cost and expense, promptly secure (after execution of this License) and maintain during the entire term of this License a broad form of comprehensive coverage policy of public liability insurance acceptable to LICENSOR and issued by an entity authorized to issue liability insurance in California, insuring LICENSEE and LICENSOR against loss or liability caused by or connected with LICENSEE'S occupation and use of the right-of-way under this License in the amounts not less than: Two Million Dollars ($2,000,000) for injury to or death to one or more persons as a result of any accident or incident; and One Million Dollars ($1,000,000) for damages to or destruction of any property of others. LICENSEE will include the contract number on all insurance -related correspondence, i.e., the insurance certificate itself. All policies required shall be issued by companies who are authorized to do business in the State of California and hold a current policyholder's alphabetic and financial -size category rating of not less than A -VI, in accordance with A.M. Best. All policies and coverage's shall contain a provision for 30 days written notice by the Insurer(s) to MTS Contracts Specialist of any cancellation or material reduction of coverage. A ten-day notice is required for non-payment of premium. All such policies shall name the San Diego Metropolitan Transit System (MTS), San Diego Trolley, Inc. (SDTI), San Diego and Arizona Eastern Railway (SD&AE), San Diego and Imperial Valley Railroad (SD&IV), San Diego Transit Corporation (SDTC), their directors, officers, agents and employees as additional insureds as their interests may appear. LICENSEE Agrees that all general liability coverages required under this insurance section are PRIMARY and that any insurance of MTS, SDTI, SD&AE, SD&IV, SDVT, and SDTC shall be excess and noncontributory (endorsement required). Notwithstanding anything to the contrary in this LICENSE, LICENSEE may elect to self -insure all or any portion of the risks that would otherwise be covered by the insurance policies required to be carried by LICENSEE under this Paragraph 7 and all conditions and requirements in such sections shall be deemed satisfied, in which case LICENSEE shall assume and pay from its assets the cost, expense, damages, claims, losses and liabilities arising from such self -insured risks to the same extent that the insurance company or companies would have insured such risks under the insurance policies required to be carried by LICENSEE under such sections. In the instances where LICENSEE's self -insured retention is in excess of the required limits of liability described in the Paragraph 7 above, LICENSEE is self -insured and shall be solely responsible for -2- L1436.0-18 payment of all deductibles or self -insured retentions that are applicable to any claims made against LICENSOR that are covered by LICENSEE's insurance policies or contemplated by this LICENSE. The provisions of this Paragraph 7 shall apply to any loss or damage covered by such self-insurance. If LICENSEE elects to self -insure, then LICENSEE shall not be required to provide insurance policies or certificates for such self -insured amounts to LICENSOR, but shall provide a letter of self-insurance to LICENSOR upon LICENSOR's written request. If LICENSEE elects to self -insure pursuant to the provisions herein and thereafter elects to terminate such self- insurance program, LICENSEE shall give at least thirty (30) days' prior written notice thereof to LICENSOR along with copies of replacement policies of insurance or certificates in accordance with the requirements set forth in this Paragraph 7. 8. The LICENSEE shall, within one hundred and twenty (120) days after receiving written notice from LICENSOR, relocate the IMPROVEMENTS constructed pursuant to this License if LICENSOR determines that the IMPROVEMENTS interfere with LICENSOR'S current or future use of its property for public transit purposes. The IMPROVEMENTS may be relocated within LICENSOR'S right-of-way if it is feasible to do so. The expense of relocating the IMPROVEMENTS shall be borne by LICENSEE. 9. If at any time LICENSEE fails or refuses to comply with or carry out any or all of the covenants herein, LICENSOR may, at its election, revoke this LICENSE upon one hundred and twenty (120) days written notice to LICENSEE. 10. THIS LICENSE is given by LICENSOR and accepted by LICENSEE upon the express condition that the same may be terminated at any time by either party upon thirty (30) days notice in writing to be served upon the other party, stating therein the date that such termination shall take place, and that upon the termination of this LICENSE in this or any other manner herein provided, LICENSEE, upon demand of LICENSOR, shall abandon the use of the IMPROVEMENTS and restore the right-of-way and any other IMPROVEMENTS or facilities within said right-of-way whether owned by LICENSOR or others to their original condition in which they were prior to the installation of the IMPROVEMENTS. In case LICENSEE fails to restore LICENSOR'S right-of- way and improvements or facilities as aforementioned within nine (9) months after the effective date of termination, LICENSOR may proceed with such work at the expense of LICENSEE. 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 IMPROVEMENTS are removed and the right-of-way of LICENSOR restored as above provided. 11. In the case of eviction of LICENSEE by anyone owning or obtaining title to the right-of-way on which the IMPROVEMENTS are located, or the sale or abandonment by LICENSOR of said right- of-way, LICENSOR shall not be liable to LICENSEE for any damage of any nature whatsoever or refund any payment made by LICENSEE to LICENSOR hereunder. 12. All notices to be given hereunder shall be given in writing, by depositing same in the United States mail duly registered or certified, with postage prepaid, and addressed to the LICENSEE or LICENSOR as the case may be at the addresses shown on the signature page hereof, or addressed to such other address as the parties hereto may from time to time designate. 13. In the event that two or more parties execute this instrument as LICENSEE, all the covenants and agreements of LICENSEE in this License shall be the joint and several covenants and agreements of such parties. -3- L 1436.0-18 14. All the covenants and provisions of this instrument shall be binding upon and inure to the benefit of the successors, legal representatives and assigns of the parties to the same extent and effect as the same are binding upon and inure to the benefit of the parties hereto, but no assignment hereof by LICENSEE, its successors. legal representatives or assigns, or any subsequent assignee, shall be binding upon LICENSOR without the written consent of LICENSOR in each instance. LICENSOR understands that LICENSEE may sell or otherwise transfer its property during the term of this License and is agreeable to such assignment or transfer, subject to LICENSOR'S written consent. Such written consent shall not be unreasonably withheld. 15. Any work performed on LICENSOR'S right-of-way by LICENSEE or LICENSEE'S contractor shall be done in a satisfactory workmanlike manner and in accordance with plans and specifications approved by LICENSOR, such approval shall not be unreasonably withheld or delayed, and no work shall be permitted until said plans and specifications have been approved by LICENSOR. such approval shall not be unreasonably withheld or delayed. 16. LICENSEE shall obtain a valid RIGHT OF ENTRY permit (Permit) from LICENSOR as a part of this License prior to entering upon LICENSOR'S right-of-way at any time whether to install, inspect, maintain, replace, or remove the IMPROVEMENTS and shall comply with the terms. conditions, and requirements of said Permit, including the insurance requirements, as a part of this License. LICENSOR shall timely process any applications required to obtain a Permit and shall not unreasonably deny or delay the issuance of any such Permit. THIS LICENSE DOES NOT GRANT UNLIMITED ACCESS TO LICENSOR'S RIGHT-OF-WAY. FAILURE TO OBTAIN AND COMPLY WITH THE REQUIREMENTS OF A VALID PERMIT WILL BE SUFFICIENT REASON FOR LICENSOR TO TERMINATE THIS LICENSE. 17. This License shall be interpreted in accordance with the laws of the State of California. If any action is brought to interpret or enforce any term of this License, the action shall be brought in a state or federal court situated in the County of San Diego, State of California 18. It is an express condition of this license that said license shall not be complete or effective until signed by LICENSEE'S authorized designee on behalf of LICENSEE, and by LICENSOR. THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK -4- L1436.0-18 IN WITNESS WHEREOF, the parties hereto have caused this License to be executed by and through their respective duly authorized representatives on the date written below their signatures. LICENSOR SAN DIEGO METROPOLITAN TRANSIT SYSTEM Signature: Name: Paul C. Jablonski Title: Chief Executive Officer Date: ' 20 • l Address: San Diego Metropolitan Transit System Attn: Manager of Real Estate Assets 1255 Imperial Avenue, Suite 1000 San Diego, CA 92101 LICENSEE CITY OF NATIONAL CITY Signature ���w Name: Title: Date: Leslie Deese City Manager March 27, 2018 Address: City of National City Attn: City Manager 1243 National City Blvd. National City, CA 91950 Attachments: Exhibit "A" — Vicinity Map Exhibit "B" — License Improvements and Installation Locations -5- L1436.0-18 L1436.0-18 EXHIBIT "B" LICENSE IMPROVEMENTS AND INSTALLATION LOCATIONS INSTALL AT THIS LOCATION e0x ADJACENT IS IRRIGATION CONTROL ACCORDING TO NITS I AC1UTIES MANAGER. LOCATION: 8TH STREET TRANSIT CENTER LOCATION: 24TH STREET TRANSIT CENTER SlcrJ PANEL VATH SIGN POST -7- L1436.0-18 Metropolitan Transit System 1255 Imperial Avenue, Suite 1000 San Diego, CA 92101 Tel 619.231.1466 Fax 619.234.3407 March 20, 2018 City Manager City of National City 1243 National City Blvd. National City, CA 91950 Subject: L1436.0-18 — License Agreement with City of National City To City Manager, Enclosed are two copies of the above -referenced document. Please si • n the keep one copy for your recor s, . • turn the document mare o rigna venue, Suite 1000, San Diego, CA 92 If you have any questions, please contact Richard Rose at richard.rose@sdmts.com Thank you for your cooperation in this matter. Sincerely, Ingrld±6pes Contract Specialist RECEIVED MAR 2 6 2018 CITY OF NATIONAL CITY CITY MANAGER'S OFFICE Metropolitan Transit System (MTSI is comprised of the Metropolitan Transit Development Board IMTDB) a Ca ifom a public agency. San Diego Transit Corp., and San Diego Troeey. Inc.. is cooperation with Chula Vista Transit and National City Transit. MTS ie Tawcao Administrator for eight cites. MTDB is owner of the San Diego and Arizona Eastern Railway Company. MTI'lR Member Agencies include Crty of Chula Vista. City of Camn'nn. at,/ of hi Colon, City of Imperial neacn City of I a Mena, City of Lunen Grave. City of National City, City of Poway City of San Diego, City of Santee. and the County of San Dego. Date: From: Subject: N !O NAL city Docket Number: 2018 - 'h REQUEST FOR LEGAL SERVICES March 26, 2018 Esther Clemente RECEIVED MAR 2 G 2018 City of National City City Attorney's Office License Agreement Between the SD Metropolitan Transit System and City of National City Deadline: March 28, 2018 SERVICE REQUESTED: II Opinion Letter ❑ P-Documents fix Review and Comment erO ® Iocument(s) for Signature Draft Documents Public Records Act Request Other: EXPLANATION: 9/,'//dY CITY OF NATIONAL CITY Office of the City Clerk 1243 National City Blvd., National City, California 91950-4397 619-336-4228 Michael R. Dalla, CMC - City Clerk March 28, 2018 Ms. Ingrid Lopes, Contracts Specialist San Diego Metropolitan Transit System 1255 Imperial Avenue, Suite 1000 San Diego, CA 92101 Dear Ms. Lopes, On March 27`h, 2018, a License Agreement was entered into between the City of National City and the San Diego Metropolitan Transit System (MTS). We are enclosing for your records a fully executed original Agreement for your records. Michael R. Dalla, CMC City Clerk Enclosures