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PW Revocable License Agreement; SMARTREVOCABLE LICENSE AGREEMENT THIS REVOCABLE LICENSE AGREEMENT ("License"), is entered into as of this 12!"d -ay of 6! g14 , 201_, ("Effective Date"), by and between the Sonoma -Marin Area Rail Transit District, a public agency, ("Licensor"), and the City of San Rafael, a California charter city, ("Licensee"). RECITALS A. Licensor is the owner of that certain real property identified by Marin County Assessor's Parcel Numbers 018-141-03, -04 and -05, which is located along the west side of Jacoby Street, between Auburn Street and the CalPark railroad tunnel, in the City of San Rafael, County of Marin, State of California, as shown in Exhibit A (the "Property"). B. Licensee desires to obtain a license from Licensor to maintain a portion of the roadway near railroad milepost 15.64 in order to provide access to a non -motorized multi -use path running along the east side of Licensor's railroad, as shown on the attached Exhibit "A". C. Licensee is willing to assume all the maintenance and repair cost of the roadway. D. Licensor is willing to grant a license to Licensee on the terms and conditions hereinafter set forth. NOW, THEREFORE, FOR VALUABLE CONSIDERATION, the receipt of which is acknowledged, the parties agree as follows: GRANT OF LICENSE. Licensor grants to Licensee, subject to the conditions and covenants of this License, a revocable license for the purpose of operating, maintaining and repairing a roadway in the location shown in Exhibit "A" (the "Roadway") for the purposes of establishing a Quiet Zone and to provide access to a non -motorized multi- use path. No other use of the Property is permitted hereunder. 2. NONEXCLUSIVENESS OF LICENSE. This License is nonexclusive. Licensor shall continue to control the Property, including, without limitation, the right to issue additional leases, sub -leases, permits and licenses. 4-3-q3-� 3. PRIOR RIGHTS. This grant is made subject and subordinate to the prior and continuing right and obligation of Licensor, its successors and assigns, to use the Property in the performance of its transportation obligations. There is reserved unto Licensor, its successors and assigns, the right to construct, reconstruct, maintain, operate and use existing and future transportation, communication, railroad track and pipeline facilities and appurtenances in, upon, over, under, across and along the Property. 4. TERM OF LICENSE. Subject to Section 22 "Condition of Effectiveness", the term of this License shall commence on the Effective date and shall continue until it is terminated as provided in Section 6. S. LICENSE FEE. Upon execution of this License, Licensee shall pay Licensor an annual license fee of $ N/A .00 (Fee is waived as consideration of Licensee's duties and obligations assumed herein) 6. TERMINATION OF LICENSE. This License shall be terminated upon one of the following occurrences, whichever is earliest: a. Notice. Either party may terminate this License by giving the non- terminating party at least thirty (30) calendar days advance written notice. b. Licensor Rights: Licensor shall retain complete and unfettered discretion to terminate this license and may move, close or relocate the Roadway. C. Abandonment. The License shall be deemed terminated upon Licensee's discontinuance of maintenance of the Roadway for one continuous year or abandonment or removal of the Roadway. d. Default by Licensee. If Licensee defaults with respect to any obligation, covenant or condition of this License and fails to correct the default within thirty (30) days after receipt of notice from Licensor to do so, Licensor may immediately terminate this License by notice to Licensee. e. Survival of Obligations. Licensee's duties and obligations set for in Section 7 "Property Restoration", Section 11 "Hazardous Materials", 12 "Assumption of Risk" and 13 "Indemnity", below, shall survive termination of this License. 7. PROPERTY RESTORATION. Upon termination of the License, Licensee shall, at its sole cost and within thirty (30) days after the date the License is deemed terminated, remove and repair any improvements, changes, or damages to the Roadway caused by Licensoe's activities on the Roadway pursuant to this License. Licensee further agrees to take all necessary action or steps (including filing applications with the California Public Utilities Commission and/or Federal Railroad Administration) to revert the Roadway and crossing to a "private crossing" and terminate its designation as a "public crossing" for all purposes. If Licensee fails to restore the Roadway or its crossing designation, Licensor may perform the work, at the sole cost and expense of the Licensee, which expense Licensee agrees to pay to Licensor upon demand. 8. WORKING PROCEDURES, REPAIR AND MAINTENANCE. a. Cost of Work. Licensee shall bear the entire cost and expense of permitting, reconstructing, operating, maintaining and repairing the Roadway on the Property. 2 b. Non -Interference with Licensor Operations. Licensee agrees that all work upon or in connection with the Roadway shall be done at such times and in such manner as not to interfere in any way whatsoever with the operations of the Licensor, its tenants or licensees. C. Licensor Approval of Work Plans. The plans for reconstructing or maintaining the Roadway shall be subject to the approval of Licensor. Approval by Licensor shall not constitute a warranty by Licensor that such plans conform with applicable federal, state and/or local laws, codes and regulations. d. Licensee to Obtain Right of Entry from Licensor for Work. Licensee agrees to obtain from Licensor a Right -of -Entry Permit with requisite insurance requirements to enter upon the Property for the performance of any work. Licensee may designate a contractor to perform such work, in which case the contractor shall also be named on Licensee's Right -of- Entry Permit from Licensor. e. Advance Notice of Work. Licensee agrees to give Licensor and Operator fifteen (15) calendar days' written notice prior to commencement of any work on the Roadway. f. Work Performance Standards. All work by Licensee upon the Property shall be performed in a good and worker -like manner satisfactory to Licensor, and shall comply with, but not be limited to, the following work standards: 1) Underground Facilities. Prior to ANY excavation or drilling activity, Licensee shall explore the existence of pipelines or other structures beneath the Property, with hand tools to a depth of at least eight feet (8') below the surface of the ground, and use suitable detection equipment prior to drilling or excavating with mechanized equipment. Absence of markers does not constitute a warranty by Licensor of no subsurface installations. It shall be Licensee's sole responsibility to determine the existence of any underground facilities. 2) Compliance with Licensor Instructions for Work. Licensee shall comply with the regulations and/or instructions of Licensor relating to the proper manner of protecting the tracks at or near the Roadway. 3) Protective Measures. Licensee shall take protective measures necessary to keep Licensor's facilities, including track, free of sand or debris resulting from its operations. 9. WORK AT COST OF LICENSEE. a. Labor and Materials. Licensee shall fully pay for all materials joined or affixed 3 to the Property pursuant to this License and shall pay in full all persons who perform labor on the Property at Licensee's request. b. Liens. As Licensor is a public entity, its Property is not subject to mechanic's or materialman's liens, and nothing in this License shall be construed to make the Property subject to such liens. However, Licensee shall immediately cause them to be removed at Licensee's own expense. C. Quiet Zone Improvements. Licensee shall be solely responsible for the cost and expense for any additional improvements needed for establishing or continuing the City's Quiet Zone designation. SMART does not, by this Agreement, agree or undertake any duty to pay or incur any cost or contribute monetarily to their design or installation. d. Licensor Costs. Licensee agrees to reimburse Licensor for the cost and expense to Licensor of furnishing any materials or performing any labor in connection with the construction, operation or maintenance of the Roadway during the term of this License, including but not limited to, the furnishing of security persons, flaggers and inspectors as Licensor reasonably deems necessary. Said reimbursement shall be paid by Licensee to Licensor within thirty (30) days after presentation of an invoice. 10. MAINTENANCE OF ROADWAY. Licensee agrees to keep the Roadway in good and safe condition, free from waste. If Licensee fails to keep the Roadway in a good and safe condition, free from waste, then Licensor may terminate this License pursuant to Section 6(d) "Default by Licensee", above, without limiting its remedies. 11. HAZARDOUS MATERIALS. No hazardous material on the Property. Other than minor amounts of materials necessary for the work to be performed on the Roadway, no hazardous materials shall be handled by Licensee or Licensee's agents at any time upon the Property. 12. ASSUMPTION OF RISK. a. Licensor's Facilities and Operations. Licensee, at its sole expense, shall repair or replace any of Licensor's facilities and/or operations damaged as a result of Licensee's operation, maintenance or repair of the Roadway. If Licensee fails timely to do so, Licensor may perform such repairs or replacements, at Licensee's sole cost and expense, which Licensee shall pay to Licensor promptly upon demand. b. Licensee's Use of Property. Licensee shall assume all risk of damage to any property of the Licensee, or any property under the control or custody of the Licensee incident to the operation or maintenance of the Roadway. Licensee 4 releases Licensor from any liability, including claims for damages or extra compensation, arising from construction delays due to Licensor's transportation operations. C. Licensor makes no warranty or representation, express or implied, or arising by operation of law, including but in no way limited to, any condition, habitability, usability, merchantability, applicability of a Quiet Zone or fitness for a particular purpose of the Roadway. 13. INDEMNITY. Licensee shall release, defend (with counsel reasonably satisfactory to Licensor) and indemnify Licensor, its successors and assigns, any railroad company operating on the Property, and their respective directors, officers, employees and agents (collectively "Indemnitees") from and against all liability, cost and expense for loss of, or damage to, property and for injuries to, or death of, any person (including but not limited to the property and employees of each party) when arising out of or resulting from the operation, maintenance or repair of the Roadway by Licensee, its agents, employees, contractors, subcontractors or invitees, or Licensee's breach of these provisions. The duty of Licensee to indemnify and save harmless the indemnitees includes the duties to defend as set forth in Section 2778 of the California Civil Code. It is the express intent of the parties under this Section 11 that Licensee will indemnify and hold harmless the Indemnitees from any and all claims, suits, or actions arising from any cause whatsoever as set forth above, other than the sole active negligence, willful misconduct or criminal acts of the Indemnitees. This indemnity shall survive termination of this License. It is the intention of the parties that, should any term of this indernnity provision be found to be void or unenforceable, the remainder of the provision shall remain in full force and effect. 14. INSURANCE. Licensee shall provide Licensor with satisfactory evidence that Licensee maintains in Rill force and effect, at its sole cost and expense: a. Comprehensive General Liability Insurance, or, if self-insured maintains excess liability coverage, in the amount of two million ($2,000,000.00). Licensee shall remove any exclusion relating to performance of operations within the vicinity of any railroad, bridge, trestle, track, roadbed, tunnel, underpass, or crossing from its general liability coverage for both the self-insured and excess policies; and said Commercial General Liability insurance policy shall be endorsed with the following specific language or contain equivalent language in the policy: SMART, its officers and employees, is named as additional insured for all liability arising out of the on-going and completed operations by or on behalf of the named insured in the performance of operating, maintaining and repairing a roadway between SMART and the City of San Rafael. 5 b. Worker's Compensation insurance and Employers' Liability Insurance, or if self- insured maintains excess liability coverage, in accordance with the laws of the State of California. Licensee shall insure the procurement and maintenance of such insurance by all contractors or subcontractors engaged on any such work. C. Proof of Insurance. Prior to entering onto the Property for any work or maintenance, Licensee shall comply with all the requirements of the Right -Of - Entry including filing Certificates of Insurance with Licensor evidencing the required coverages and endorsements. d. Self -Insurance. Upon evidence of financial capacity satisfactory to SMART and Permittee's agreement to waive subrogation against SMART respecting any and all claims that may arise, Permittee's obligation hereunder may be satisfied in whole or in part by adequately fimded self-insurance. 15. COMPLIANCE WITH LAWS. Licensee shall comply, at Licensee's expense, with all applicable laws, regulations, rules and orders with respect to the use of the Property, regardless of when they became or become effective, including without limitation, those relating to Quiet Zones, signage, and safety. Licensee shall also obtain, at Licensee's expense, any and all permits required for the operation and maintenance of the Roadway. 16. NOTICES. All notices required or permitted to be given under this License shall be in writing and mailed, postage prepaid, by certified or registered mail, return receipt requested, or by personal delivery to the addresses indicated below or at such other place or places as either Licensor or Licensee may, from time to time, respectively, designate in a written notice given to the other. TO LICENSOR: Real Estate Manager Sonoma -Marin Area Rail Transit District 5401 Old Redwood Highway, Ste. 200 Petaluma, CA 94954 And in emergencies to: Bill Gamlen, Chief Engineer Telephone No: 415-717-5838 Email: BGamlen@sonomamarintrain.org TO LICENSEE: Public Works Director City of San Rafael 111 Morphew Street San Rafael, CA 94901 And in emergencies to: San Rafael Police Dispatch Telephone No: (4l 5) 485-3000 6 17. SUCCESSORS AND ASSIGNS. The License granted herein is personal to Licensee (including Licensee's officers, employees, agents, and volunteers) and no right hereunder may be assigned or sublet, in whole or in part, and Licensee shall not permit any other person, firm, corporation or the public, to use, in whole or in part, any of the rights or privileges granted pursuant to this License without first obtaining the written consent of Licensor. Licensor may withhold its consent for any reason. 18. NO WAIVER. No waiver of any default or breach of any covenant of this License by either party shall be implied from any omission by either party to take action on account of such default if such default persists or is repeated. Waivers of any covenant, term or condition by either party shall not be construed as a waiver of any subsequent breach of the same covenant, term or condition. 19. SEVERABILITY. Each provision of this License is intended to be severable. If any term or provision shall be determined by a court of competent jurisdiction to be illegal or invalid for any reason whatsoever, such provision shall be severed from this License and shall not affect the validity of the remainder of this License. 20. ATTORNEYS' FEES. If any legal proceeding should be instituted by either of the parties to enforce the terms of this License or to determine the rights of the parties under this License, the prevailing party in the proceeding shall receive, in addition to all court costs, reasonable attorneys' fees. 21. NO GIFT OR DEDICATION TO THE PUBLIC. The License is not intended and shall not be construed as a dedication of the Roadway for public use or for any public purpose whatsoever, it being the intention of the parties hereto that this License shall be limited to and for the purposes herein expressed, and the parties shall take whatever steps may be necessary to avoid such dedication. 22. CONDITION OF EFFECTIVENESS. As a condition precedent to the effectiveness of this License, Licensee shall have a site-specific plan for the operation and maintenance of the Roadway approved by Licensor and provided satisfactory proof of insurance as required herein. 23. INTEGRATION. This License constitutes the complete expression of the agreement between the parties and supersedes any prior agreements, whether written or oral, concerning the subject of this License, whether or not such prior terms and agreements are fully expressed herein. Any modification of or addition to this License must be in writing, signed by both parties. 24. LICENSEE TO ACT IN INDEPENDENT CAPACITY. Licensee, its officers, agents and employees shall act in an independent capacity and shall not represent themselves to be or be constructed to be offices, agents or employees of Licensor. 25. LICENSE NOT A LEASE. This License docs not constitute a lease, but constitutes a mere revocable license and Licensee is limited to the use of the Property expressly and specifically described herein. Licensee disclaims any interest that, when coupled with the license herein granted, would render it irrevocable. 26. TIME OF ESSENCE. Time is and shall be of the essence of this License and of each and every provision contained in this License. 27. NO THIRD -PARTY BENEFICIARIES. Nothing contained in this License shall be construed to create and the parties do not intend to create any rights in third parties or the Public. 28. RELATIONSHIP. The parties intend by this License to establish the relationship of licensor and licensee only, and do not intend to create a partnership, joint venture, joint enterprise or any business relationship other than that of licensor and licensee. 29. CAPTIONS. The captions in this License are for convenience only and are not a part of this License. The captions do not in any way limit or amplify the provisions hereof, and shall have no effect upon the construction or interpretation of any part hereof. IN WITNESS WHEREOF, the parties have executed this Revocable License Agreement as of the Effective Date by their duly authorized representatives. LICENSOR: LICENSEE: SONOMA-MARIN AREA RAIL CITY OF SAN RAFAEL TRANSIT DISTRICT ` R By: By: Farhad ansourian, Gey ral Manager Jimch Ztz, City ► ger ATTEST: y: 1 iGL Lc4iii��. d=a Clerk of the Board of Directors ED AS TO By: District Counsel A`T'TEST': By: 4 Lindsay Lara, City Clerk APPROVED AS TO FORM: By:L-LA _LC i, a Robert F. Epstein, City Att rney Google Earth Photo of Roadway Location. {' iA� 1 •�M t f` h� 7� i+; ,, � � � 1, � .r ASk1• � � . � - �``� Mow .,�r �itl }+ .,r F� / ''L r{� A`-il� f:f,•• �'r fF':: Ly r,;a''t�+' ` i.�r,� l `ti� Y � �'�c` n.:: J',t'i�'. 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VLA ,... r' � 1 •�1Ri'•i=A I • IV �1 ,� RAP. �l 1 � o /ry WITH P 05 CONTRACT ROUTING FORM INSTRUCTIONS: Use this cover sheet to circulate all contracts for review and approval in the order shown below. TO BE COMPLETED BY INITIATING DEPARTMENT PROJECT MANAGER: Contracting Department: Public Works Project Manager: Bill Guerin Extension: 3110 Contractor Name: Revocable License Agreement —SMART and CSR —Jacoby Street Crossing Contractor's Contact: Tom Lyons, General Counsel, SMART Contact's Email: tlyons@sonomamarintrain.org ❑ FPPC: Check if Contractor/Consultant must file Form 700 Step RESPONSIBLE DESCRIPTION COMPLETED REVIEWER DEPARTMENT DATE Check/Initial 1 Project Manager a. Email PINS Introductory Notice to Contractor N/A b. Email contract (in Word) and attachments to City Attorney c/o Laraine.Gittens@cityofsanrafael.org 8/8/19 2 City Attorney a. Review, revise, and comment on draft agreement 11/13/2019 and return to Project Manager b. Confirm insurance requirements, create Job on N/A PINS, send PINS insurance notice to contractor 3 Department Director Approval of final agreement form to send to ❑ contractor Forward three (3) originals of final agreement to 4 Project Manager ❑ contractor for their signature 5 Project Manager When necessary, contractor -signed agreement ® N/A agendized for City Council approval * *City Council approval required for Professional Services ❑ Agreements and purchases of goods and services that exceed Or $75,000; and for Public Works Contracts that exceed $175,000 Click here l PRINT Project Manager Date of City Council approval enter a date. CONTINUE ROUTING PROCESS WITH HARD COPY 6 Forward signed original agreements to City 11/22/19 Attorney with printed copy of this routing form Review and approve hard copy of signed C{ 7 City Attorney agreement 8 City Attorney Review and approve insurance in PINS, and bonds (for Public Works Contracts) 9 City Manager/ Mayor Agreement executed by City Council authorized official 1 t 10 City Clerk Attest signatures, retains original agreement and forwards copies to Project Manager