HomeMy WebLinkAboutExecuted License Agrmt. Plam Dr. & Citrus Ave.Los Angeles County One Gateway Plaza 213.922.2000 Tel
Metropolitan Transportation Authority Los Angeles, CA 90012-2952 metro net
Metro
February 7, 2011
RPBL006337
S00000201
Mr. George Morrow
City of Azusa
729 N. Azusa Avenue
P. O. Box 9500
Azusa, CA 91702-9500
SUBJECT: FULLY EXECUTED LICENSE AGREEMENT FOR A LONGITUDINAL
WATER LINE BETWEEN PALM DRIVE AND CITRUS AVENUE IN THE
CITY OF AZUSA
Dear Mr. Morrow,
Enclosed is a fully executed copy of the License Agreement between Pasadena Metro Blue Line
Construction Authority and the City of Azusa for an existing fourteen (14) -inch longitudinal
water line and a new connection with cathodic protection at Palm Drive in the City of Azusa.
For any future inquiries or submittal of insurance renewals, please ensure you reference your
contract number RPBL006337.
If you have any questions please call me at (213) 922-5253.
The Los Angeles County Metropolitan Transportation Authority is agent for the Los Angeles to
Pasadena Metro Blue Line Construction Authority.
Sincerely,
F r
coaJ648DW Y_f)�
Diane H. Dominguez t9
Senior Real Estate Officer
Enclosures
cc: B. Holman, CDG, C. Sourmelis, SCRRA,
J. Sims, PBLCA, R. Hiramoto, PBLCA
T. Hodges, Chron
File: RPBL006337
500000201
LICENSE AGREEMENT
BETWEEN
PASADENA METRO BLUE LINE CONSTRUCTION AUTHORITY
AND
CITY OF AZUSA
File: RPBL006337
S00000201
LICENSE AGREEMENT
Th' LICENSE A EEMENT ("Agreement") is made and entered into as
of , 2011 by and between the PASADENA METRO BLUE
Ll CONST CTION AUTHORITY, a public agency existing under the authority
of the laws of the State of California ("PBLCA"), and CITY OF AZUSA, a California
Municipal corporation, ("LICENSEE"), upon and in consideration of the agreements,
covenants, terms and conditions below:
PART I
BASIC LICENSE PROVISIONS
Description of License Property:
An underground longitudinal water line located on PBLCA rail corridor property at the
cross streets of Foothill Blvd between Palm Drive and Citrus Avenue in the City of
Azusa, on the Pasadena Sub Division at approximate Milepost 116.05 as shown on the
attached Exhibit "A" with cathodic protection and Exhibit "A-1" for the existing
longitudinal water line with no cathodic protection.
Approximate area:
10 X 900 = 9,000 Total Square Feet (51.1)
2. Use of License Property:
Installation, operation, maintenance and repair of the Rosedale 830, fourteen (14) inch
longitudinal water line and a new connection with cathodic protection near Palm Drive
only, and no other uses
(§1.1, §10)
3. Commencement Date:
February 1, 2011
(§ 1.2)
4. Term (circle one):
Month-to-month
N/A months, ending N/A, unless canceled by PBLCA 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 advance
b. Monthly in advance (§2.1)
Additio 1 License Fee:
a. One time fee: $1,000.00 One -Time Administrative Fee
b. Other fees: $1,500.00 One -Time Plan Check Fee (§2.1)
PBLCA LICENSE AGREEMENT
Revised 012304
C. Base License Fee Adjustment Dates (Circle, if applicable)
a. Annually based on CPI
b. At intervals of not less than three (3) years based on current
fair market rent (§2.2)
6. Insurance Amount (See Exhibit "B") (§ 16)
7. PBLCA's Address:
PASADENA METRO BLUE LINE CONSTRUCTION AUTHORITY
c/o LA County Metropolitan Transportation Authority
One Gateway Plaza - 18th Floor
Los Angeles, CA 90012-2952
Attn: Deputy Executive Officer Real Estate (§24.1)
8. Licensee's Address:
City of Azusa
P. O. Box 1395
Azusa, CA 91702-1395 (§24.1)
Attn: Carl E. Hassel, P.E.
Assistant Director of Public Works/City Engineer
9. Facility: Installation, operation, maintenance and repair of the Rosedale 830, fourteen
(14) inch longitudinal water line and a new connection with cathodic protection near
Palm Drive only, and no other uses
(§ 1.1)
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.
PBLCA LICENSE AGREEMENT
Revised 012304 11
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their duly
authorized representatives as of the date first written above.
PBLCA:
PASADENA METRO BLUE LINE CONSTRUCTION AUTHORITY
By: Lryi OL.( G(� `y—
Name: Velma C. Marshall
Title: Deputy Executive Officer - Real Estate
For: Los Angeles County Metropolitan Transportation Authority
As: Agent for PBLCA
LICENSEE:
CITY OF AZUSA
By:
Name: George Aorrow
Title: Director of Utilities
PBLCA LICENSE AGREEMENT
Revised 012304 111
INDEX TO LICENSE AGREEMENT - PART II
Section
Paye
1. GRANT OF LICENSE/TERM....................................................................................................1
2. PAYMENTS................................................................................................................................1
3. TAXES .........................:.................................................................................................2
4. CONSTRUCTION.......................................................................................................................2
5. CONTRACTORS; APPROVAL AND INSURANCE...............................................................2
6. REIMBURSEMENT ..................................................................................................................3
7. LIENS..........................................................................................................................................3
8. MAINTENANCE AND REPAIR...............................................................................................3
9. LANDSCAPING.........................................................................................................................3
10. USE............................................................................................................................................3
11. ABANDONMENT....................................................................................................................4
12. BREACH... ................................................................................................................................4
13. SURRENDER............................................................................................................................4
14. INDEMNIFICATION................................................................................................................4
15. ASSUMPTION OF RISK AND WAIVER...............................................................................5
16. INSURANCE.............................................................................................................................5
17. TESTS AND INSPECTIONS....................................................................................................5
18. HAZARDOUS/TOXIC MATERIALS USE AND INDEMNITY............................................5
19. UNDERGROUND STORAGE TANKS...................................................................................6
20. SUBORDINATE RIGHTS........................................................................................................6
21. COMPLIANCE WITH LAWS............................................................................... ..... .. ..6
22. CONDEMNATION......................................:........:.....................................:.......:.::.....:............7
23. MARKERS ........................................................................... - - -.7
24. GENERAL PROVISIONS........................................................................................................7
Exhibits:
"A" License Property
"B" Insurance Requirements
"C" Permitted Hazardous Materials
"D" SCRRA Additional Provisions
PBLCA LICENSE AGREEMENT
Revised 012304 iv
PART II - GENERAL LICENSE PROVISIONS
1. GRANT OF LICENSE/TERM
1.1 Grant of License. PBLCA hereby grants a non-exclusive license to Licensee in, on,
over, under, across and along the real property of PBLCA in the location shown in the diagram attached hereto as
Exhibit A and described in Item 1 of the Basic License Provisions (the "License Property"), for construction, installation,
operation, alteration, maintenance, reconstruction and/or removal of the Facility described in Item 9 of the Basic License
Provisions, and any usual, 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 Parries") subject to the provisions hereof, may have
reasonable rights of entry and access onto adjoining real property of PBLCA 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 PBLCA's prior written approval. The
License Property, adjoining real property of PBLCA and personal property of PBLCA located thereon shall hereinafter
collectively be referred to as "PBLCA Property".
1.2 Term of AMement. 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 month-to-month 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 4.11; provided, however, that PBLCA shall have the right to terminate
this Agreement prior to the date specified in Item 4.B by delivering thirty (30) days' prior written notice to Licensee,
provided that PBLCA, 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 Proyerty. 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 PBLCA 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 Term,
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 Adiustment.
2.2.1 Annual CPI Adjustment. If Item 5.C.a of the Basic Lease 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 CPI figure for the month that is three (3) months prior to the month containing
PBLCA LICENSE AGREEMENT
Revised 012304
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 PBLCA.
2.2.2 _Fair Market Adjustment. If Item 5.C.b of the Basic Lease 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 PBLCA in good faith. Such increases shall be
effective on an anniversary date of the Commencement Date. PBLCA 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 irate Charee. Licensee acknowledges that late payment by Licensee of any payment
owed to PBLCA under this Agreement will cause PBLCA 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 PBLCA within five (5) days of when due, Licensee shall pay to PBLCA an additional sum of ten percent
(10%) of the overdue payment as a late charge, up to a maximum amount of $500 for each late payment. The parties agree
that this late charge represents a fair and reasonable estimate of the administrative costs that PBLCA 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 PBLCA from exercising any of the other rights and remedies available to
PBLCA 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 PBLCA'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 PBLCA. 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 PBLCA for review and
approval. Any such Work must be carried out pursuant to work plans approved in writing by PBLCA. In addition,
Licensee shall provide PBLCA 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 PBLCA's
representative personally or by phone prior to commencing any Work. Unless otherwise requested by PBLCA, upon
completion of any Work, Licensee shall restore the PBLCA 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 PBLCA. With respect to such Work, Licensee shall, at its sole cost and expense, obtain
and maintain in full force and effect throughout the term of such Work, insurance, as required by PBLCA, 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 (ii) 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 PBLCA, in the amounts and
PBLCA LICENSE AGREEMENT
Revised 012304
coverages specified on, and issued by insurance companies as described on, Exhibit "B". PBLCA 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 PBLCA for all reasonable costs and expenses incurred by
PBLCA in connection with Work on or maintenance of the License Property or the Facility, including, but not limited to,
costs incurred by PBLCA 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 PBLCA's tracks, furnishing of watchmen,
flagmen and inspectors as PBLCA deems necessary and such other items or acts as PBLCA 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
PBLCA Property, and fully and promptly pay all persons who perform labor upon said Facility or PBLCA Property.
Licensee shall not suffer or permit to be filed or enforced against the PBLCA 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 PBLCA with respect thereto, within ten (10) business days after notice thereof
and shall indemnify, hold harmless and defend PBLCA from all obligations and claims made against PBLCA for the
above described work, including attorney's fees. Licensee shall furnish evidence of payment upon request of PBLCA.
Licensee may contest any lien, claim or demand by furnishing a statutory lien bond or equivalent with respect to stop
notices to PBLCA in compliance with applicable California law. If Licensee does not discharge any mechanic's lien or
stop notice for works performed for Licensee, PBLCA shall have the right to discharge same (including by paying the
claimant) and Licensee shall reimburse PBLCA for the cost of such discharge within ten (10) business days after billing.
PBLCA reserves the right at any time to post and maintain on the PBLCA Property such notices as may be necessary to
protect PBLCA 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 Term of this Agreement and shall perform all maintenance and clean-up of the License
Property and the Facility as necessary to keep the License Property and the Facility in good order and condition, to
PBLCA's satisfaction. If any portion of the PBLCA 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 PBLCA 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 PBLCA, then Licensee, at its sole cost and expense, shall install barrier
landscaping to shield the Facility from public view. PBLCA 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 PBLCA's prior written approval.
PBLCA LICENSE AGREEMENT
Revised 012304
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, PBLCA 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, PBLCA at its option
may:
(a) perform any necessary or appropriate corrective work at Licensee's expense, which
Licensee agrees to pay to PBLCA 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 PBLCA 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 PBLCA prior to
the date of termination, Licensee, at its own cost and expense, shall immediately remove the Facility and restore the
PBLCA 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, PBLCA
may at its option (i) perform the same at Licensee's expense, which costs Licensee agrees to pay to PBLCA 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 PBLCA Property is restored.
14. INDEMNIFICATION
Licensee, on behalf of itself and its successors and assigns, agrees to indemnify, defend (by
counsel satisfactory to PBLCA), and hold harmless PBLCA 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
PBLCA Property or arising from the presence upon or performance of activities by Licensee or its Personnel with respect
to the PBLCA 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 PBLCA,
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
PBLCA LICENSE AGREEMENT
Revised 012304
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 PBLCA 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 PBLCA
Property, accident or fire or other casualty on the PBLCA Property, or electrical discharge, noise or vibration resulting
from PBLCA's transit operations on or near the PBLCA Property. The term "PBLCA" as used in this section shall
include: (i) any transit or rail -related company validly operating upon or over PBLCA's tracks or other property, and (ii)
any other persons or companies employed, retained or engaged by PBLCA. 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 PBLCA 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 PBLCA in the amounts and coverages specified and issued by
insurance companies as described on Exhibit "B". PBLCA 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 PBLCA with insurance endorsements or certificates
evidencing the existence, amounts and coverages of the insurance required to be maintained hereunder. In most instances,
PBLCA does not allow self-insurance, however, if Licensee can demonstrate assets and retention funds meeting PBLCA's
self-insurance requirements, PBLCA may permit 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 PBLCA at its sole and
absolute discretion. PBLCA 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
PBLCA shall have the right at anytime to inspect the License Property and the Facility so as
to monitor compliance with this Agreement. If, in PBLCA's sole judgment, any installation on, or use or condition of the
License Property may have an adverse effect on the PBLCA Property, adjacent property (whether or not owned by
PBLCA) or PBLCA operations, PBLCA 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 PBLCA in any tests or inspections deemed necessary
by PBLCA. Licensee shall pay or reimburse PBLCA, 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, 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 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"). Except for Hazardous Materials expressly approved by PBLCA in writing as shown on Exhibit "C", 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 PBLCA Property. Any Hazardous Materials on the
site shall be stored, used, generated and disposed of in accordance with all applicable Environmental Laws. As used
PBLCA LICENSE AGREEMENT
Revised 012304
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 PBLCA) 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 PBLCA Property or adjacent property (i) which occurs due to the use and occupancy of the Facility
or the PBLCA 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 PBLCA
Property and all affected adjacent property -- whether or not owned by PBLCA) and to return the affected property to the
condition existing prior to such release or contamination, to the satisfaction of PBLCA 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 PBLCA, WHICH APPROVAL MAY BE WITHHELD IN PBLCA'S SOLE
DISCRETION.
At PBLCA'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 PBLCA Property, in accordance
with the requirements of all Environmental Laws and to the satisfaction of PBLCA and any governmental authorities
having jurisdiction thereover, and deliver to PBLCA 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
PBLCA, its successors and assigns, to use the PBLCA 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 PBLCA, 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 PBLCA Property, and in connection therewith the right to grant
and convey to others, rights and interests to the PBLCA 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 PBLCA 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 PBLCA Property and shall furnish
satisfactory evidence of such compliance promptly upon request of PBLCA. PBLCA 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.
PBLCA LICENSE AGREEMENT
Revised 012304
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) 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 PBLCA.
23. MARKERS
Project markers in form and size satisfactory to PBLCA, identifying the Facility and its
owners, will be installed and constantly maintained by and at the expense of Licensee at such locations as PBLCA shall
designate. Such markers shall be relocated or removed upon request of PBLCA without expense to PBLCA. Absence of
markers in or about PBLCA Property does not constitute a warranty by PBLCA 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 the party to whom notice or demand is given.
24.2 Non -Exclusive License. The license granted herein is not exclusive and PBLCA
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 Obli ag tions. Except as expressly herein provided, any amount
due to PBLCA 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 PBLCA 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 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 provision hereof, or in any way
affect the interpretation of this Agreement.
24.7 Survival of Dbli ag ions. 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 PBLCA Property and the Facility.
24.8 Waiver of Covenants or Conditimns. 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/Nonbinding 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 PBLCA and Licensee. Each individual executing this License on behalf of PBLCA or
Licensee represents and warrants to the other party that he or she is authorized to do so.
24.10 Amendment. This Agreement may be amended at any time by the written agreement
of PBLCA and Licensee. All amendments, changes, revisions, and discharges of this Agreement in whole or in part, and
PBLCA LICENSE AGREEMENT
Revised 012304 7
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
PBLCA, which may be withheld in PBLCA's sole and absolute discretion, and any attempted act in violation of the
foregoing shall be void and without effect and give PBLCA 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 PBLCA'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
the License Property is located on PBLCA property that may be developed for public projects and programs which may be
implemented by PBLCA 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
Property under this Lease is an interim use. Accordingly, as a condition to entering into this Lease, PBLCA expressly PBLC
reserves the right to terminate the License for any of such public Project. Licensee expressly acknowledges and agrees
that: (1) PBLCA may terminate this license for any public project; (2) Licensee will NOT oppose any public Project when
planned or implemented on or adjacent to the License Property; and (3) in the event PBLCA 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 PBLCA shall at any time, or from time to time,
so require by written notice thereof to Licensee based on the need of PBLCA, in its sole discretion, for the License
Property for its public purposes Licensee shall reconstruct, alter, make changes as required by PBLCA, relocate or remove
its Facility at Licensee's sole cost and expense.
24.17 Time of Essence. Time is of the essence.
24.18 No 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 PBLCA 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 PBLCA 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.
24.21 Additional Provisions. Those additional provisions set forth in Exhibit "D", if any,
are hereby incorporated by this reference as if fully set forth herein.
PBLCA LICENSE AGREEMENT
Revised 012304
Exhibit "A"
License Property
[To Be Inserted]
PBLCA LICENSE AGREEMENT
Revised 012304
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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 PBLCA and
MTA property hereunder by the Lessee, Licensee, or Permittee, his agents, representatives, employees or
subcontractors.
Minimum Scone of insurance (Check all applicable boxes)
Coverage shall be at least as broad as:
nsurance. Services Office Commercial General Liability coverage (occurrence form CG 0001).
Insurance Services Office Form No. CA 0001 (Ed. 1187) covering Automobile Liability, code 1 (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 of 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)
Lwes Licensee, or Permittee shall. maintain limits no less than:
General Liability: $2,000,000 per occurrence for bodily injury, personal injury and property
damage.
IF Commercial General Liability Insurance or other form with a general aggregate limit is used,
either the general aggregate limit shall apply separately to this project/location or the general
aggregate limit shall be twice the required occurrence limit.
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
❑ 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 PBLCA and MTA. At the option of
PBLCA and MTA, either: the insurer shall reduce or eliminate such deductibles or self-insured retentions as
respects PBLCA and MTA, its 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.
Other Insurance Provisions
PBLCA LICENSE AGREEMENT
Revised 012304 10
Exhibit `B"
The general liability and automobile liability policies are to contain, or be endorsed to contain, the following
provisions:
1. PBLCA 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 PBLCA 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 PBLCA and MTA, its subsidiaries, officials and employees. Any insurance or self-
insurance maintained by PBLCA 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 PBLCA 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 suspended,
voided, canceled by either a party, or reduced in coverage or in limits, except after thirty (30) days' prior written
notice by certified mail, return receipt requested, has been given to PBLCA and MTA.
6. Workers' Compensation and Employer's Liability policies shall contain the inclusion of the PBLCA 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. PBLCA and MTA shall be named as loss payee.
2. The insurer shall waive all rights subrogation against PBLCA and MTA.
Acceptability of Insurers
Insurance is to be placed with insurers with a current A.M. Best's rating of no less than A:VII, unless otherwise
approved by PBLCA and MTA.
Verification of Coveraze
Lessee, Licensee, or Permittee shall furnish PBLCA 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 PBLCA 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 PBLCA and MTA.
PBLCA LICENSE AGREEMENT
Revised 012304 11
Exhibit "C"
Permitted Hazardous Materials
No hazardous materials are permitted to be used or stored on Premises.
PBLCA LICENSE AGREEMENT
Revised 012304 12
Exhibit "D"
SOUTHERN CALIFORNIA REGIONAL RAIL AUTHORITY (SCRRA
REI�UIREMENTS "ADDITIONAL PROVISIONS"
RIGHT -OF -ENTRY WITH S.C.R.R.A. The Licensee agrees to execute and deliver to
SCRRA, prior to commencing any work within the rail right-of-way, SCRRA Right of
Entry Agreement (Form No. 6) and deliver and secure approval of the insurance required
by the two exhibits attached to Form No. 6. If the Licensee retains a contractor to perform
any work within the rail right-of-way, the Licensee shall incorporate in its contract
documents SCRRA Form No. 6 and SCRRA Rules and Requirements for Construction
on Railway Property (Form No. 37). SCRRA's Right of Way Engineers Office can be
reached at (909) 859-4113.
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.
THIRD PARTY SAFETY TRAINING Third Party Safety training is required for all
work near or within the railroad right-of-way. Licensee's contractor shall contact
SCRRA at 1-877-452-0205 to schedule safety training. The contractor will need a valid
SCRRA project number, located in the upper right hand corner of the Right of Entry. No
work may commence on the railroad right-of-way until this training has been completed.
4. INSPECTION AND FLAGGING SERVICES Licensee's contractor shall 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 work.
Although every effort is made to accommodate your schedule, prior notification does not
guarantee the availability of protective services for the proposed date of work.
5. MODIFICATION OF FIBER OPTIC LINE If SCRRA or PBLCA requires Licensee to
modify the licensed fiber optic lines for purposes of railroad safety or operation, Licensee
agrees to do so at its own expense upon receipt of appropriate notice.
6. 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.
7. SCRRA FUTURE TRACK(S) AND/OR OTHER FACILITIES 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.
Lie see PBLCA
PBLCA LICENSE AGREEMENT
Revised 012304 13 Initials
8. TRAFFIC CONTROL PLAN Licensee shall prepare and submit temporary traffic
control plan for SCRRA approval for projects that will affect vehicular traffic at an
existing highway -rail grade crossing.
9. SCRRA'S SIGNAL DEPARTMENT The contractor shall contact SCRRA's Signal
Department at (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.
10, BORE AND JACKING 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.
Licensee PBLCA
�; V'k� '-
Initials
PBLCA LICENSE AGREEMENT
Revised 012304 14