HomeMy WebLinkAboutContracts & Agreements_180-2005_CCv0001.pdf 1o5 Angeles County One Gateway Plaza 213.922.92oo Tel
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October 12, 2005
City Clerk's Office
Mr. Gary G. Phelps
City of Redlands
P.O. Box 3005
Redlands, California 92373
RE: CONTRACT RRND007633 LOCATED AT NEVADA STREET SOUTHERLY OF
INDUSTRIAL PARK AVENUE IN'THE CITY OF REDLANDS
Dear Mr. Phelps:
Enclosed is the fully executed original of the above referenced agreement for the
installation of one twelve inch water pipeline in a twenty two inch steel casing at Nevada
Street for the proposed Hawthorne Suites Hotel development on SANBAG'sRedlands
Subdivision.
Thank you for your payment for the administrative fee written on check#1216 by Omkar
Management, LLC in the amount of$1,000.00 dated 9/22/05. This amount has been
posted to the City's new account number.
The Southern California Regional Rail Authority has been notified of the completion of
this contract and they are waiting for you to contact them regarding their inspection and
flagging services.
"The Los Angeles lWetropolitan Transportation Authority,is the agent for San Bernardino
Associated Governments".
Thank you for your patience in this matter. If you have any questions, please contact me
at (213) 922-2,423.
Sincere
Mauieen Luce h
Rea!`Estate cer
V
Enclosures
cc: D. Robb; M. Moorhusen, Chron (without enclosures)
Navin Makan & Dave Crabtree—Hawthorne Suites Hotel (without enclosures)
4,A T A
MUNAL
A
File: RRND007633
LICENSE AGREEMENT
BETWEEN
SAN BERNARDINO ASSOCIATED GOVERNMENTS
AND
CITY OF REDLANDS
File: RRND007633
Project# 860331/8.0
50001090
LICENSE AGREEMENT
This LICENSE AGREEMENT ("Agreement") is made and entered into as
of' 20th day of Sept. _, 2005 by and between the SAN BERNARDINO
ASSOCIATED GOVERNMENTS, a public agency existing under the authority of the
laws of the State of California ("SANBAG"), and CITY OF REDLANDS a municipal
corporation, ("LICENSEE"), upon and in consideration of the agreements, covenants,
terms and conditions below:
PART I
BASIC LICENSE PROVISIONS
I Description of License Property:
An underground crossing of SANBAG property at Nevada Street southerly of Industrial
Park Avenue in the City of Redlands on the Redlands Subdivision at Mile Post 6.8 as
shown on Exhibit"A".
Approximate area:
Five Hundred Square Feet (500 Sq. Ft.)
2. Use of License Property:
Installation, operation, maintenance and repair of one (1) twelve inch (12") water pipeline
in a twenty-two inch(22") steel casing only, and no other uses (§1.1, §10)
3. Commencement Date:
April 1, 2005
4. Tenn (circle one):
Month-to-month
N/A months, ending N/A 20 N/A, unless canceled by SANBAG as
provided in Section 1.2 on 30 days'notice 1.2)
5. License Fees:
A. Base License Fee:
$N/A per month, payable (circle one):
a. Annually in --ay....
b. 4-9RAWy (§2.1)
License Agreement—SANBAG Version Redlands Nevada RRND007633 031505
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Additional License Fee:
0 One time administrative fee: $1,000.00
b. "t4auXa": $N/A (§2.1)
C. Base License Fee Adjustment Dates (Not applicable)
a. Ammally --a '-21-11
b. At j44jo&qxaJa g%r-nAj lgao
yoffs based on otwf@"t
r-psqi
(§2.2)
6. Insurance Amount (See Exhibit "B") 16)
7. SANBAG's Address:
SAN BERNARDINO ASSOCIATED GOVERNMENTS
c/o Los Angeles County Metropolitan Transportation Authority
One Gateway Plaza- 13th Floor—RRND007633
Los Angeles, CA 90012-2952
Attn: Director of Real Estate (§24.1)
8. Licensee's Address:
CrfY OF REDLANDS
MUNICIPAL UTILITIES DEPARTMENT
35 Cajon Street, Suite 15A
P.O. Box 3005
Redlands, California 92373 024.1)
Attn: Gary G. Phelps
909-798-7698
9. Facility:
One (1) twelve inch(12") water pipeline in a twenty-two inch (22") steel casing 1.1)
The foregoing Basic License Provisions and the General License Provisions set forth in attached
Part 11 are incorporated into and made part of this Agreement.
License Agreement—SANBAG Version Redlands Nevada RRND007633 031505
Revised 012304 MIS
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their duly
authorized representatives as of the date first written above.
SANBAG:
SAN BERNARDINO ASSOCIATED GOVERNMENTS
Name: Velma C. Marshall
Title: Director of Real Estate
For: Los Angeles County Metropolitan Transportation Authority
As: Agent for SANBAG
LICENSEE:
CITY OF REDLANDS
By: ,4
Name: usan Peppler
Title: Mayor
Attest:
By: `€
Nanie: rrie Poy
Title: City Clerk
License'Agreement—SANBAG Version Redlands Nevada RRND007633 031505
Revised 012304 111 ml s
INDEX TO LICENSE AGREEMENT- PART 11
Section Page
l. GRANT OF LICENSE/TERM................. ...................... ...........................................................I
2. PAYMENTS................................................................................................................................l
3. TAXES.........................................................................................................................................2
4. CONSTRUCTION.......................................................................................................................2
5. 0 ; APPROVAL AND INSURANCE-------__------._^...---2
b. REIMBURSEMENT ...................................................................................................................1
7. LIENS ----------------------------------------------3
0. MAINTENANCE AND REPAIR................................................................................................3
g. LANDSCAPING .........................................................................................................................3
l[iUSE............................................................................................................................................3
lL --------------------------------------..4
l2. BREACH ............................................................. .....................................................................4
13. SURRENDER-----------------------------------------.4
14. INDEMNIFICATION-------------------------------------.4
\5. ASSUMPTION OFRISK AND WAIVER............................................................................ �5
16. INSURANCE-----------------------------------------..5
17. TESTS AND INSPECTIONS-------__________________________.5
IS. USE AND INDEMNITY........................ ...................5
19. UNDERGROUND STORAGE TANKS................. .................................................................6
20. SUBORDINATE RIGHTS........................................................................................................6
Zl. COMPLIANCE WITH LAWS..................................................................................................6
27. CONDEMNATION.--.—.._—..--....----....—..—.--__._..---..---.--..7
23. MARKERS................................................ ...............................................................................7
24. GENERAL PROVISIONS.........................................................................................................7
Exhibits:
"A/ License Property
.B" Insurance Requirements
"C" Permitted Hazardous Materials
"T)" Additional Provisions
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PART 11 - GENERAL LICENSE PROVISIONS
1, GRANT OF LICENSE/TERM
1.1 Grant of License. SANBAG hereby grants a non-exclusive license to Licensee in,
on, over, under, across and along the real property of SANBAG in the location shown in the diagram attached hereto as
Exhibit A and described in Item I of the Basic License Provisions (the"License Property"), for construction, installation,
operation, alteration, maintenance,reconstruction and/or removal of the Facility described in Item 9 of the Basic License
Provisions, and any usual,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 grant of 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 adjoining real property of SANBAG if necessary for the use of the Facility or
the License Property, with the time and manner of such entry and access to be subject to SANBAG's prior written
approval. The License Property, adjoining real property of SANBAG and personal property of SANBAG located thereon
shall hereinafter collectively be referred to as"SANBAG Property".
1.2 Term of Agreement. The 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 4.13 of the Basic License Provisions, or if Item 4.A is circled,this Agreement shall continue in full force
and effect on a mouth-to-mouth basis as provided in Item 4.A of the Basic License Provisions until terminated by either
party on thirty(30)days'prior written notice. If Item 4.13 of the Basic License Provisions is filled in,then this Agreement
shall be a license for the term specified in said Item 4.13; provided, however, that SANBAG shall have the right to
terminate this Agreement prior to the date specified in Item 4.13 by delivering thirty (30) days' prior written notice to
Licensee, provided that SANBAG, in its sole,reasonable judgment, determines that it then may require possession of the
License Property for its primary, transportation-related purposes. The term of this Agreement as provided above is
referred to as the"Term".
1.3 Condition of License Property. Licensee acknowledges that it has inspected and
accepts the License Property in its present condition as suitable for the use for which this Agreement is granted.
Execution of this Agreement by Licensee shall be conclusive to establish that the License Property is in good and
satisfactory condition as of the Commencement Date.
2. PAYMENTS
2.1 License Fee. As consideration for the rights herein granted, Licensee agrees to pay
to SANBAG the amount per month specified in Item 5 of the Basic License Provisions, as such amount may be adjusted
as set forth in Section 2.2. If Item 5.B.a of the Basic License Provisions is circled,the one time fee noted therein shall be
due and payable upon execution of this Agreement. If Item 5.B.b of the Basic License Provisions is circled,the fee noted
therein shall be due and payable as indicated in that item. If Item 5.A.a of the Basic License Provisions is circled, an
amount equal to twelve (12) times 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, annually in advance for the convenience of both parties, without
affecting the Term of this Agreement as specified in Section 1.2. If Item 5.A.b of the Basic License Provisions is circled,
the first month's Base License Fee noted therein shall be 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 the first day of each calendar month succeeding the Commencement Date during the Tenn,
except that the Base License Fee for any fractional calendar month at the commencement or end of the Term shall be
prorated on a daily basis.
2.2 License Fee Adjustment.
2.2.1 Annual CPI Adjustment. If Item 5.C.a of the Basic License Provisions is
circled,then the Base License Fee shall be increased,but not decreased, as provided below on the first day of each month
during which an annual anniversary of the Commencement Date occurs unless another date(s)is provided in Item 5 of the
Basic License Provisions (the "Adjustment Date"). The adjusted Base License Fee as of each Adjustment Date shall be
the greater of the Base License Fee on the day preceding that Adjustment Date or that amount multiplied by a fraction,the
numerator of which is the CPI figure for the third month preceding the month during which the particular Adjustment
Date occurs and the denominator of which is the CP1 figure for the month that is three (3) months prior to the month
Liceirse Agreement—SANBAG Version Redlands Nevada RRND007633 031505
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containing the prior Adjustment Date or, if none,the Commencement Date. As used in this section,the "CPI"means the
Consumer Price Index for Urban Wage Earners and Clerical Workers, Los Angeles/Riverside/Orange County, all items
(1982-84 100), published by the U.S. Department of Labor, Bureau of Labor Statistics, or if such index is no longer
published,the U.S. Department of Labor's most comprehensive official index then in use that most nearly corresponds to
the index named above. If it is calculated from a base different from the base period 1982-84 = 100, figures used for
calculating the adjustment shall first be converted to the base period used under a formula supplied by the Bureau. If a
comparable index shall no longer be published by the U.S. Department of Labor, another index generally recognized as
authoritative shall be substituted by SANBAG.
2.2.2 Fair Market Adjustment. If Item 5.C.b of the Basic License Provisions is
circled, then, at intervals of not less than three (3) years, the Base License Fee (as such fee may be adjusted by
Section 2.2.1, above) payable under this Section 2 shall be increased, but not decreased, in order to adjust the fee to the
then fair market rental value of the License Property as determined by SANBAG in good faith. Such increases shall be
effective on an anniversary date of the Commencement Date. SANBAG shall give Licensee written notice of the date and
amount of any such adjustment not less than thirty(30)days prior to the applicable anniversary date. If no adjustment is
made on the third anniversary of the Commencement Date,an adjustment may nevertheless be made on a subsequent date
and thereafter at intervals of not less than three(3)years apart.
2.3 Late Charize. Licensee acknowledges that late payment by Licensee of any payment
owed to SANBAG under this Agreement will cause SANBAG to incur costs not contemplated by this Agreement, the
exact amount of such costs being extremely difficult and impracticable to fix. Therefore, if any payment due from
Licensee is not received by SANBAG within five(5)days of when due, Licensee shall pay to SANBAG an additional sum
of ten percent (10%) of the overdue payment as a late charge, up to a maximum amount of 5500 for each late payment.
The parties agree that this late charge represents a fair and reasonable estimate of the administrative costs that SANBAG
will incur by reason of a late payment by Licensee. Acceptance of any late payment charge shall not constitute a waiver of
Licensee's default with respect to the overdue payment,nor prevent SANBAG from exercising any of the other rights and
remedies available to SANBAG under this Agreement,at law or in equity,including,but not limited to,the interest charge
imposed pursuant to Section 24.5.
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, the License Property and/or any personal property, fixtures or equipment of Licensee used in connection
therewith or(b)as a result of the Facility's operations.
4. CONSTRUCTION
Any work performed or caused to be performed by Licensee on the Facility or the License
Property shall be performed (a) at Licensee's sole cost and expense, (b) in accordance with any and all applicable laws,
rules and regulations(including the SANBAG's rules and regulations),and(c) in a manner which is(i)equal to or greater
than the then applicable standards of the industry for such work, and (ii) satisfactory to SANBAG. Prior to
commencement of any construction, reconstruction, installation, restoration, alteration, repair, replacement or removal
(other than normal maintenance) (hereinafter, "Work") on the License Property, Licensee shall submit work plans to
SANBAG for review and approval. Any such Work must be carried out pursuant to work plans approved in writing by
SANBAG. In addition, Licensee shall provide SANBAG 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 SANBAG's representative personally or by phone prior to commencing any Work. Unless otherwise
requested by SANBAG, upon completion of any Work, Licensee shall restore the SANBAG Property to its condition
immediately preceding the commencement of such 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 SANBAG. With respect to such Work, Licensee shall,at its sole cost and expense,obtain
and maintain in fall force and effect throughout the term of such Work, insurance, as required by SANBAG, in the
amounts and coverages specified on, and issued by insurance companies as described on. Exhibit"B". Additionally,
Licensee shall cause any and all of its contractors and subcontractors which may(i) be involved with such Work, or(n)
may, for any reason, need to enter onto the License Property to obtain and maintain in full force and effect during the
License Agreement—SANBAG Version Redlands Nevada RRNID007633 031505
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Term of this Agreement, or throughout the term of such Work(as applicable), insurance, as required by SANBAG,in the
amounts and coverages specified on,and issued by insurance companies as described on,Exhibit"B". SANBAG 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 or the Work to be performed on the License Property.
6. REIMBURSEMENT
Licensee agrees to reimburse SANBAG for all reasonable costs and expenses incurred by
SANBAG in connection with Work on or maintenance of the License Property or the Facility, including, but not limited
to, costs incurred by SANBAG in furnishing any materials or performing any labor, reviewing Licensee's Work plans
and/or inspecting any Work, installing or removing protection beneath or along SANBAG's tracks, furnishing of
watchmen, flagmen and inspectors as SANBAG deems necessary and such other items or acts as SANBAG 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 the Facility or
SANBAG Property, and fully and promptly pay all persons who perform labor upon said Facility or SANBAG Property.
Licensee shall not suffer or permit to be filed or enforced against the SANBAG 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 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 SANBAG with respect thereto,within ten (10)business days after notice thereof
and shall indemnify,hold harmless and defend SANBAG from all obligations and claims made against SANBAG for the
above described work, including attorneys fees. Licensee shall famish evidence of payment upon request of SANBAG.
Licensee may contest any lien, claim or demand by furnishing a statutory lien bond or equivalent with respect to stop
notices to SANBAG in compliance with applicable California law. If Licensee does not discharge any mechanic's lien or
stop notice for works performed for Licensee, SANBAG shall have the right to discharge same (including by paying the
claimant)and Licensee shall reimburse SANBAG for the cost of such discharge within ten(10)business days after billing.
SANBAG reserves the right at any time to post and maintain on the SANBAG Property such notices as may be necessary
to protect SANBAG 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
first-class condition during the Tenn of this Agreement and shall perform all maintenance and clean-up of the License
Property and the Facility as necessary to keep the License Property and the Facility in good order and condition, to
SANBAG's satisfaction. If any portion of the SANBAG 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 tests or investigations conducted upon the License
Property, Licensee shall, at its own cost and expense, immediately repair all such damage and restore the SANBAG
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 any
excavation by Licensee or Licensee's Parties.
9. LANDSCAPING
If required by SANBAG, then Licensee, at its sole cost and expense, shall install barrier
landscaping to shield the Facility from public view. SANBAG shall have the right to review and approve landscaping
plans prior to installation. All landscaping work shall be done in accordance with the provisions of Section 4 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,the Facility or the commodity or product being conveyed through the
Facility(if any)without SANBAG's prior written approval.
License Agreement SANBAG Version Redlands Nevada RRND007633 03 1505
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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,SANBAG shall immediately be entitled to exclusive possession and ownership of the portion
so abandoned or discontinued,without the encumbrance of this Agreement.
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, SANBAG at its option
may:
(a) perform any necessary or appropriate corrective work at Licensee's expense, which
Licensee agrees to pay to SANBAG 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 and any other person occupying the License Property by lawful means, and again repossess and enjoy the
License Property and the Facility,without prejudice to any of the remedies that SANBAG may have under this Agreement,
at law or equity by reason of Licensee's default or of such termination.
13. SURRENDER
Upon termination of this Agreement,unless otherwise requested in writing by SANBAG prior
to the date of termination, Licensee, at its own cost and expense, shall immediately remove the Facility and restore the
SANBAG 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,SANBAG
may at its option (i)perform the same at Licensee's expense,which costs Licensee agrees to pay to SANBAG on demand,
or (ii) 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 SANBAG Property is restored.
14. INDEMNIFICATION
Licensee, on behalf of itself and its successors and assigns, agrees to indemnify, defend (by
counsel satisfactory to SANBAG), and hold harmless SANBAG and its subsidiaries, officers, directors, employees,
agents,successors and assigns(individually and collectively,"Indemnitees"),to the maximum extent allowed by law,from
and against all loss, liability, claims, demands, suits, liens, claims of lien, damages (including consequential damages),
costs and expenses (including, without limitation, any fines, penalties,judgments, litigation expenses, and experts' and
attorneys'fees),that are incurred by or asserted against Indemnitees arising out of or connected in any manner with (i) the
acts or omissions to act of the Licensee, or its officers, directors, affiliates, Licensee's Parties or anyone directly or
indirectly employed by or for whose acts Licensee is liable (collectively, "Personnel") or invitees of Licensee in
connection with the SANBAG Property or arising from the presence upon or performance of activities by Licensee or its
Personnel with respect to the SANBAG Property, (ii) bodily injury to or death of any person (including employees of
Indemnitees)or damage to or loss of use of property resulting from such acts or omissions of Licensee or its Personnel,or
(iii) non-performance or breach by Licensee or its Personnel of any term or condition of this Agreement, in each case
whether occurring during the Term of this Agreement or thereafter.
The foregoing indemnity shall be effective regardless of any negligence (whether active,
passive, derivative, joint, concurring or comparative) on the part of Indemnitees, unless caused solely by the gross
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 SANBAG,
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
License Agreement—SANBAG Version Redlands Nevada RRND007633 031505
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limitation on the amount or type of damages,compensation,or benefits payable by or for a 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 SANBAG 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 SANBAG Property, accident or fire or other casualty on the SANBAG Property, or electrical discharge, noise or
vibration resulting from SANBAG's transit operations on or near the SANBAG Property. The term"SANBAG"as used in
this section shall include: (i) any transit or rail-related company validly operating upon or over SANBAG's tracks or other
property, and (ii) any other persons or companies employed, retained or engaged by SANBAG. Licensee, on behalf of
itself and its Personnel (as defined in Section 14)as a material part of the consideration for this Agreement,hereby waives
all claims and demands against SANBAG 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.
The provisions of this section shall survive the termination of this Agreement.
16. INSURANCE
Licensee,at its sole cost and expense, shall obtain and maintain in full force and effect during
the Term of this Agreement insurance as required by SANBAG in the amounts and coverages specified and issued by
insurance companies as described on Exhibit "B". SANBAG 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 or the
Work to be performed on the License Property. Prior to (i) entering the License Property or(ii)performing any Work or
maintenance on the License Property, Licensee shall furnish SANBAG with insurance endorsements or certificates
evidencing the existence,amounts and coverages of the insurance required to be maintained hereunder. In most instances,
SANBAG does not allow self-insurance, however, if Licensee can demonstrate assets and retention funds meeting
SANBAG's self-insurance requirements,SANBAG may pen-nit Licensee to self-insure,provided,however that the right to
self-insure with respect to any coverage required to be maintained hereunder may be granted or revoked by SANBAG at
its sole and absolute discretion. SANBAG shall not be liable for the payment of any premiums or assessments for
insurance required to be maintained by Licensee under this Agreement.
17. TESTS AND INSPECTIONS
SANBAG shall have the right at anytime to inspect the License Property and the Facility so as
to monitor compliance with this Agreement. if, in SANBAG's sole judgment, any installation on, or use or condition of
the License Property may have an adverse effect on the SANBAG Property, adjacent property(whether or not owned by
SANBAG) or SANBAG operations, SANBAG 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 or useful to
evaluate the condition of the License Property. Licensee shall cooperate with SANBAG in any tests or inspections
deemed necessary by SANBAG. Licensee shall pay or reimburse SANBAG, as appropriate, for all reasonable costs and
expenses incurred due to the tests,inspections or any necessary corrective work and inspections thereafter.
is. IIAZARDOUS/TOXIC MATERIALS USE AND INDEMNITY
Licensee shall operate and maintain the License Property in compliance with all,and shall not
cause or permit the License Property to be in violation of any federal, state or local environmental, health and/or
safety-related laws, regulations, standards, decisions of the courts, permits or pen-nit conditions, currently existing or as
amended or adopted in the future which are or become applicable to Licensee or the License Property("Environmental
Laws"). Except for Hazardous Materials expressly approved by SANBAG in writing as shown on Exhibit "C", Licensee
shall not cause or pen-nit, 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 SANBAG Property. Any Hazardous Materials on the
site shall be stored, used, generated and disposed of in accordance with all applicable Environmental Laws. As used
License Agreenwnt--SANBAG Version Rediands Nevada RRNL)007633 031505
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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 SANBAG)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 SANBAG Property or adjacent property(i)which occurs due to the use and occupancy of the Facility
or the SANBAG 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 gross
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,Licensee,
at its sole expense, shall promptly take all actions necessary to clean up the affected property (including the SANBAG
Property and all affected adjacent property-- whether or not owned by SANBAG) and to return the affected property to
the condition existing prior to such release or contamination, to the satisfaction of SANBAG 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 UNLESS SPECIFICALLY APPROVED IN
ADVANCE IN WRITING BY SANBAG, WHICH APPROVAL MAY BE WITHHELD IN SANBAG'S SOLE
DISCRETION.
At SANBAG's option,upon the termination of this Agreement at any time and for any reason,
Licensee shall,prior to the effective date of such termination,remove and close all underground storage tanks and related
equipment and clean up and remove all Hazardous Materials in, on, under and about the SANBAG Property, in
accordance with the requirements of all Environmental Laws and to the satisfaction of SANBAG and any governmental
authorities having jurisdiction thereover, and deliver to SANBAG a copy of a certificate Of Closure issued for such tanks
by the appropriate governmental authority,
20. SUBORDINATE RIGHTS
This Agreement is subject and subordinate to the prior and continuing right and obligation of
SANBAG, its successors and assigns,to use the SANBAG Property in the exercise of its powers and in the performance
of its duties,including those as a public transportation body. Accordingly,there is reserved and retained unto SANBAG,
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 SANBAG Property, and in connection therewith the right to
grant and convey to others, rights and interests to the SANBAG Property on the License Property and in the vicinity of
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 SANBAG Property now or hereafter,and
the words "grant" or "convey" as used herein shall not be construed as a covenant against the existence of any such title
exceptions,
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 SANBAG Property and shall
furnish satisfactory evidence of such compliance promptly upon request of SANBAG. SANBAG 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.
LicellseAgreement- SA`BAG Version Redlands Nevada RRND007633 031505
Revised 011-304 6
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 on proceedings), Licensee shall receive
compensation (if any) 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 SANBAG.
23. MARKERS
Project markers in form and size satisfactory to SANBAG, identifying the Facility and its
owners,will be installed and constantly maintained by and at the expense of Licensee at such locations as SANBAG shall
designate. Such markers shall be relocated or removed upon request of SANBAG without expense to SANBAG.
Absence of markers in or about SANBAG Property does not constitute a warranty by SANBAG 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 personal delivery, by express courier service or by certified mail postage prepaid,
and addressed to such party at its address set forth in the Basic License Provisions. Either party may change its address
for the receipt of notice by giving written notice thereof to the other party in the manner herein provided. Notices shall be
effective only upon receipt by party the party to whom notice or demand is given.
24.2 Non-Exclusive License. The license granted herein is not exclusive and SANBAG
specifically reserves the right to grant other licenses within the License Property.
California. 24.3 Governing Law. This Agreement shall be governed by the laws of the State of
24.4 Severability. If any tenn, 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 SANBAG that 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 SANBAG as it accrues. Payment of such interest shall not excuse or cure any default by
Licensee under this Agreement,provided,however,that interest shall not be payable on late charges incurred by Licensee.
24.6 Ca tions. 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 provision hereof, or in any way
affect the interpretation of this Agreement.
24.7 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 SANBAG Property and the Facility,
24.8 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,
24.9 Effective Date/Noribindin- Offer. Submission of this License for examination or
signature by Licensee does not constitute an offer or option for license, and it is not effective as a license or otherwise
until executed and delivered by both SANBAG and Licensee. Each individual executing this License on behalf of
SANBAG or Licensee represents and warrants to the other party that he or she is authorized to do so.
License Aggrement-SANBAG Version Redlands Nevada RRNDOO-,633 031505
Revised 012302 7
24.10 Amendment. This Agreement may be amended at any time by the written agreement
of SANBAG 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 despite any lack of legal consideration, so long as the same shall
be in writing and executed by the parties hereto.
24.11 Assignment. This Agreement and the license granted herein are personal to the
Licensee. Licensee shall not assign or transfer(whether voluntary or involuntary)this Agreement in whole or in part, or
permit any other person or entity to use the rights or privileges hereby conveyed, without the prior written consent of
SANBAG, which may be withheld in SANBAG's sole and absolute discretion, and any attempted act in violation of the
foregoing shall be void and without effect and give SANBAG the right to immediately terminate this Agreement.
24.12 Attorneys' Fees. In any judicial or arbitration proceeding involving performance
under this Agreement, or default or breach thereof, the prevailing party shall be entitled to its reasonable attorney's fees
and costs.
24.13 Nondiscrimination. Licensee certifies and agrees that all persons employed thereby
and/or the affiliates, subsidiaries, or holding companies thereof and any contractors retained thereby with respect to the
License Property are and shall be treated equally without regard to or because of race,religion,ancestry,national origin,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.
24.14 Further Acts. Licensee agrees to perform any further acts and to execute and deliver
in recordable form any documents which may be reasonably necessary to carry out the provisions of this Agreement,
including,at SANBAG's sole discretion,the relocation of the Facility and the license granted hereby.
24.15 Termination for Public Project. Licensee hereby expressly recognizes and agrees that Licensee
the License Property is located on SANBAG property that may be developed for public projects and programs which may
be implemented by SANBAG or other public agencies, such as, but not limited to: rail and bus transitways, bikeways,
walkways, beautification projects and other public uses (collectively "Project"), and that Licensee's use of the License 'Y
Property under this License is an interim use. Accordingly, as a condition to entering into this License, SANBAG
expressly reserves the right to terminate the License for any of such public Project. Licensee expressly acknowledges andl
agrees that: (1) SANBAG may terminate this license for any public project; (2) Licensee will NOT oppose any public SANBAG
Project when planned or implemented on or adjacent to the License Property; and (3) in the event SANBAG terminates
this License and requires Licensee to vacate the License Property for any—public Project,Licensee(a)shall not be entitled
to receive any relocation assistance, moving expenses, goodwill or other payments 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, California Government Code §7260 et seq; and(b) shall not be entitled to any
compensation under the eminent domain law,as a result of such termination and vacation of the License Property.
24.16 Future Need of License Property. If SANBAG shall at any time,or from time to
time,so require by written notice thereof to Licensee based on the need of SANBAG,in its sole discretion,for the License
Property for its public purposes Licensee shall reconstruct,alter,make changes as required by SANBAG,relocate or
remove its Facility at Licensee's sole cost and expense.
24.17 Time of Essence. Time is of the essence.
24A Na Recording . Licensee shall not record or permit to be recorded in the official
records of the county where the License Property is located, this Agreement, any memorandum of this Agreement or any
other document giving notice of the existence of this Agreement or the license granted hereby.
24.19 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 herein is revocable by SANBAG in accordance with the terms of this Agreement,
24.20 Entire Agreement Amendments.
This Agreement and the Exhibits hereto constitute
the entire agreement between the Parties with respect to the subject matter hereof and supersede all prior verbal or written
agreements and understandings between the Parties with respect to the items set forth herein. This Agreement may be
amended at any time by the written agreement of SANBAG and Licensee. All amendments, changes, revisions, and
License Agreement-SAN13AG Version Redlands Nevada RRND00-633 03)505
Revised 012304 8
ml s
discharges of this Agreement in whole or in part, and from time to time,shall be binding upon the parties despite any lack
of legal consideration,so long as the same shall be in writing and executed by the parties hereto.
24.21 Additional Provisions. Those additional provisions set forth in Exhibit "13", if any,
are hereby incorporated by this reference as if fully set forth herein.
License Agreement- SANBAG Version Redlands Neroada RRND007633 031505
Revised 012304 ml
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IN A 22"STEEL CASING
APN No.292-06-63-36
APN No.292-06-64-01
Branch/Line Map Reference Mile Post Lessee/Licensee
REDLANDS -- RND3 ME 6.8 EXHIBIT'A'
Engineers Station Community City CITY OF REDLANDS
„ REDLANDS
County SAN Nearest Cross St. Thomas Guide Grids San Bernardino MTA File No.
IIIERNARDINO NEVADA ST 6 ZQ6 Associated Governments07633
Area Use 12"WATER Legend 472 North Arrowhead Ave. Scale Date MLS
500 SQ.FT. PIPELINE San Bernardino,CA 92401-1421 1"=40' 3/15/2005
Exhibit"B"
INSURANCE REQUIREMENTS FOR LEASES, LICENSES, AND PERMITS
Lessee, Licensee, or Permittee shall procure and maintain, for the duration of the contract, insurance
against claims for injuries to persons or damages to property which may arise from, or in connection with,
the use of SANBAG and MTA property hereunder by the Lessee, Licensee, or Permittee, his agents,
representatives, employees or subcontractors.
Minimum scope of Insurance (Check all applicable boxes)
Coverage shall be at least as broad as:
" Insurance Services Office Commercial General Liability coverage (occurrence form CG 0001).
L/\J
Insurance Services Office Form No. CA 0001 (Ed. 1/87) covering Automobile Liability, code I
(any auto).
Worker's Compensation insurance as required by the State of California and Employer's Liability
Insurance.
Course of Construction insurance form providing coverage for "all risks" of loss.
Property insurance against all risks of loss to any tenant improvements or betterments.
Insurance Services Office Railroad Protective Liability
Contractor's Pollution Liability with coverage for:
a. bodily injury, sickness, disease, mental anguish or shock sustained by any person,
including death;
b. property damage including physical injury to or destruction of tangible property including
the resulting loss of use thereof, clean-up costs, and the loss of use Tangible property
that has not been physically injured or destroyed;
C. defense, including costs, charges and expenses incurred in the investigation, adjustment or
defense of claims for such compensatory damages; and
d. losses caused by pollution conditions that arise from the operations of the contractor
described under the scope of services of this contract.
Minimum Limits of Insurance (Check all applicable boxes)
Lessee, Licensee,or Permittee shall maintain limits no less than:
General Liability: $2,000,000 per occurrence for bodily injury, personal injury and
froperty damage.
if Commercial General Liability Insurance or other form with a general aggregate limit is
used, either the general aggregate limit shall apply separately to this pro ect/,ocation or the
general aggregate limit shall be twice the required occurrence limit. i l
Automobile Liability: $1,000,000 per accident for bodily injury and property damage.
Employer's Liability: $1,000,000 per accident for bodily injury or disease.
Course of Construction: Completed value of the project.
Property Insurance: Full replacement cost with no coinsurance penalty provision.
Railroad Protective Liability: $2,000,000 per occurrence. Aggregate limit shall apply separately
to this project/location or the aggregate limit shall be twice the required per occurrence limit
E] Contractors Pollution Liability: $1,000,000 per occurrence $2,000,000 annual aggregate.
Deductibles and Self-Insured Retentions
Any deductibles or self-insured retentions must be declared to and approved by SANBAG and MTA. At
the option of SANBAG and MTA, either: the insurer shall reduce or eliminate such deductibles or self-
insured retentions as respects SANBAG and MTA, 'is officials and employees. or the Lessee, Licensee, or
Permittee shall procure a bond guaranteeing payment of losses, and related investigations, claim
administration and defense expenses.
License Agreement—SANBAG Version
Revised 0 12304 11 Redlands Nevada RRNDG07633,03151?;
m19 9
Exhibit"B"
Other Insurance Provisions
The general liability and automobile liability policies are to contain, or be endorsed to contain, the
following provisions:
1. SANBAG and MTA, its subsidiaries, officials and employees are to be covered as insureds as respects:
liability arising out of activities performed by or on behalf of the Lessee, Licensee, or Permittee;
products and completed operations of the Lessee, Licensee, or Permittee; premises owned, occupied or
used by the Lessee, Licensee, or Permittee; and automobiles owned, leased, hired or borrowed by the
Lessee, Licensee, or Permittee. The coverage shall contain no special limitations on the scope of
protection afforded to SANBAG and MTA, its subsidiaries, officials and employees.
2. For any claims related to this project, the Lessee, Licensee, or Permittee's insurance coverage shall be
primary insurance as respects SANBAG and MTA, its subsidiaries, officials and employees. Any
insurance or self-insurance maintained by SANBAG and MTA, its subsidiaries, officials and
employees shall be excess of the contractor's insurance and shall not contribute with it.
3. Any failure to comply with reporting or other provisions of the policies including breaches of
warranties shall not affect coverage provided to SANBAG and MTA, its subsidiaries, officials and
employees.
4. The Lessee, Licensee, or Permittee's insurance shall apply separately to each insured against whom
claim is made or suit is brought, except with respect to the limits of the insurer's liability.
5. Each insurance policy required by this clause shall be endorsed to state that coverage shall not be
SuWend d, voided, canceled by either a party, or reduced in coverage or in limits, except after thirty
z
(30 daysprior written notice by certified mail, return receipt requested, has been given to SANBAG
and MTA.
6. Workers' Compensation and Employer's Liability policies shall contain the inclusion of the SANBAG
and MTA, its Subsidiaries, officials
and employees as additional insured, or provide a waiver of
subrogation.
Course of construction policies shall contain the following provisions:
1. SANBAG and MTA shall be named as loss payee.
2. The insurer shall waive all rights subrogation against SANBAG and MTA.
Acceptabihil of Insurers
Insurance is to be placed with insurers with a current A.M. Best's rating of no less than A:VII, unless
otherwise approved by SANBAG and MTA.
Verification of Coverage
Lessee, Licensee, or Permittee shall furnish SANBAG and MTA with original endorsements and
certificates of insurance evidencing coverage required by this clause. All documents are to be signed by a
person authorized by that insurer to bind coverage on its behalf. All documents are to be received and
approved by the SANBAG and MTA before work commences. As an alternative, the Lessee, Licensee, or
Permittee may provide complete, certified copies of all required insurance policies, including endorsements
effecting the coverage required by these specifications.
Contractors and Subcontractors
Lessee, Licensee. or Permittee shall include all contractors and subcontractors as insureds under its policies
or require certificates and endorsements for each contractor and subcontractor. All coverages for
contractors and subcontractors shall be subject to all of the requirements stated herein. The administration
of insurance compliance of contractors and subcontractors shall be subject to audit review by SANBAG
and MTA.
License Agreement—SANBAG Version Redlands Nevada RRND007633 031505
Revised 012304 12 MIS
Exhibit "C"
Permitted Hazardous Materials
No hazardous materials are permitted to be used or stored on License Property.
License Agreement--SA BAG Version
Revised 012304 Redlands Nevada RRNFX)03'
67 3 031505
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13 M-1 S
Exhibit "D"
SOUTHERN CALIFORNIA REGIONAL RAIL AUTHORITY(SCRRA)
REQUIREMENTS TO BE INCLUDED AS "ADDITIONAL PROVISIONS"
A-I RIGHT-OF-ENTRY WITH S.C.R.R.A. Licensee's contractor shall enter into a Right-of-Entry
agreement with the Southern California Regional Rail Authority(SCRRA)before performing any
activity on railway corridor property.
A-2 CONTRACTOR'S INSURANCE Licensee's contractor, at its sole cost and expense, shall
obtain and maintain, in full force and effect, insurance as required by SCRRA during the entire
construction period. The Contractor shall furnish copies of the insurance certificates to all affected
operating railroads.
A-3 INSPECTION AND FLAGGING SERVICES Licensee or licensee's contractor must contact
SCRRA's Maintenance of Way office at(909)392-4506,to arrange for inspection and flagging
services,a minimum of five(5)working days prior to beginning any of the following work:
• Personnel will be working within 20 feet of the nearest rail
• Equipment will be operating within or adjacent to the right-of-way
• Excavation, grading, and blasting will be undertaken on the right-of-way
This prior notification does not guarantee the availability of protective services for the proposed
date of construction.
A-4 PROTECTION OF OTHER LINES AND STRUCTURES, Licensee or licensee's contractor
shall be responsible for the location and protection of any and all surface, sub-surface, and
overhead lines and structures.
A-5 MARKING OF CABLES AND CONDUITS The contractor shall call SCRRA's signal
department(909) 859-4100 to mark signal and communication cables and conduits. In case of
signal emergencies or grade crossing problems,the contractor shall call SCRRA's 24-hour signal
emergency number: 1-888-446-9721.
A-6 CLEARANCE TO AUTOMATIC SIGNAL GATE ARMS All overhead cables will be installed
with a minimum of two (2) feet of clearance to the automatic crossing signal gate arms when in the
vertical position.
A-7 JACKING AND RECEIVING PITS 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 to the track and shall not be located between the track and the automatic signal gate
arms.
INITIALS
Licensee SANBAG
License Agreement—SANBAG Version Redlands Nevada P RND007633 031 SOS
Revised 0 12104 14 MIS