HomeMy WebLinkAboutPW Revocable License Agreement with SMART____________________________________________________________________________________
FOR CITY CLERK ONLY
File No.: 4-3-933
Council Meeting: 09/16/2019
Disposition: Resolution 14723
Agenda Item No: 4.b
Meeting Date: September 16, 2019
File No.: 18.06.52
TOPIC: REVOCABLE LICENSE AGREEMENT WITH SMART
SUBJECT: RESOLUTION APPROVING AND AUTHORIZING THE CITY MANAGER TO
EXECUTE A REVOCABLE LICENSE AGREEMENT WITH THE SONOMA-
MARIN AREA RAIL TRANSIT DISTRICT
RECOMMENDATION: Adopt a resolution approving and authorizing the City Manager to execute
a revocable license agreement with the Sonoma-Marin Area Rail Transit District (SMART) so that
the City can take over maintenance of the roadway preparatory to the establishment of a Quiet
Zone at the Jacoby Street railroad crossing.
BACKGROUND: In August 2017, SMART commenced passenger service between Santa Rosa
and San Rafael. Concurrent with SMART’s launching of passenger service, the City, partnering
with other local jurisdictions, implemented a Quiet Zone from Novato to Downtown San Rafael. A
Quiet Zone allows the train operator to refrain from blowing the horn at roadway and pedestrian
crossings except for when the train leaves a station or when the train operator determines an
emergency or safety hazard exists.
SMART has been constructing their track extension to Larkspur for over a year. Construction is
substantially complete, and SMART began testing of the Larkspur Extension line between
Downtown San Rafael and Larkspur on August 23, 2019. As required by federal law, the train
operator must blow the locomotive horn at each roadway and pedestrian crossing unless and until
a Quiet Zone is implemented. Certain safety mechanisms, such as medians and quad gates,
are required to qualify for a Quiet Zone and SMART has installed these safety mechanisms as
part of the Larkspur Extension construction. Bells at crossings are required to sound regardless
of the establishment of a Quiet Zone.
ANALYSIS: Federal law requires that a Quiet Zone start and end at a public roadway crossing
the railroad tracks. Located off Jacoby Street, on SMART property, is a private road crossing the
railroad tracks. As a private crossing, this intersection cannot terminate the Quiet Zone and
therefore, the train horn would need to sound at this intersection. To provide a continuous Quiet
Zone throughout all of San Rafael, the Jacoby Street crossing must be converted to a public
SAN RAFAEL CITY COUNCIL AGENDA REPORT
Department: Public Works
Prepared by: Bill Guerin,
Director of Public Works
City Manager Approval: __________
SAN RAFAEL CITY COUNCIL AGENDA REPORT / Page: 2
crossing. In order to qualify as a public crossing, the crossing must be owned by a public entity
(SMART) and it must be maintained by the public entity responsible for traffic control or law-
enforcement at the public highway-rail grade or pedestrian crossing (City). Because of these
requirements, the City proposes to enter into a revocable license agreement with SMART such
that the City agrees to maintain the roadway at the railroad crossing and thus qualify it as a public
crossing. SMART and the City have agreed upon a form of revocable license agreement
(Attachment 2) and staff requests the Council authorize execution of the agreement subject to
final approval as to form by the City Attorney.
FISCAL IMPACT: Maintenance expenses associated with the revocable license agreement will
vary year to year depending on the nature of the work to be performed. Routine maintenance
items, such as debris removal or minor asphalt work, can be performed in-house by Public Works
staff at minimal expense. Other larger capital improvements will be planned for and executed as
part of the annual Capital Improvement Program (CIP).
It is anticipated that this short stretch of roadway will have minimal use. As such, it is anticipated
that expenses to maintain the roadway will be minimal. Maintenance expenses associated with
this agreement will be paid for from Gas Tax Funds (fund no. 206).
OPTIONS: The City Council has the following options to consider relating to this matter:
1. Adopt a resolution authorizing the City Manager to execute a revocable license agreement
with SMART for roadway maintenance preparatory to the establishment of a Quiet Zone
at the Jacoby Street railroad crossing.
2. Do not adopt a resolution and provide further direction to staff. If the revocable license
agreement is not executed, the Jacoby Street crossing will not be considered a public
crossing and thus ineligible for inclusion in the Quiet Zone.
RECOMMENDED ACTION: Adopt a resolution approving and authorizing the City Manager to
execute a revocable license agreement with the Sonoma-Marin Area Rail Transit District
(SMART) so that the City can take over maintenance of the roadway preparatory to the
establishment of a Quiet Zone at the Jacoby Street railroad crossing.
ATTACHMENT:
1. Resolution
2. Draft Revocable License Agreement, with Exhibit A
RESOLUTION NO. 14723
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN RAFAEL
APPROVING AND AUTHORIZING THE CITY MANAGER TO EXECUTE A
REVOCABLE LICENSE AGREEMENT WITH THE SONOMA-MARIN AREA RAIL
TRANSIT DISTRICT
_____________________________________________________________________
WHEREAS, in August 2017, the Sonoma-Marin Area Rail Transit
District (SMART) commenced passenger service between Santa Rosa and San
Rafael; and
WHEREAS, SMART anticipates beginning passenger service from
Downtown San Rafael to Larkspur in late 2019 as part of the Larkspur Extension; and
WHEREAS, the City desires to establish a Quiet Zone for the Larkspur
Extension, including the now-present private crossing at Jacoby Street; and
WHEREAS, in order to establish a Quiet Zone at the Jacoby Street
crossing, that crossing, privately owned by SMART, must be changed from a private
crossing to a public crossing; and
WHEREAS, to convert the private crossing at Jacoby Street to a public
crossing the City proposes to enter into a revocable license agreement with SMART
that will make the City liable for maintenance of the roadway at the crossing;
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF SAN
RAFAEL RESOLVES as follows:
1. The Council hereby approves and authorizes the City Manager to
execute a revocable license agreement with SMART for roadway
maintenance at the Jacoby Street railroad crossing, preparatory to the
establishment of a Quiet Zone at the Jacoby Street crossing, in a form
approved by the City Attorney.
2. The Director of Public Works is hereby authorized to take any and all
such actions and make changes as may be necessary to accomplish
the purpose of this resolution.
I, LINDSAY LARA, Clerk of the City of San Rafael, hereby certify that the
foregoing resolution was duly and regularly introduced and adopted at a regular meeting
of the Council of said City on the 16th day of September 2019, by the following vote, to
wit:
AYES: COUNCILMEMBERS: Colin, Gamblin & Mayor Phillips
NOES: COUNCILMEMBERS: None
ABSENT: COUNCILMEMBERS: Bushey & McCullough
LINDSAY LARA, City Clerk
City Revision Date: August 16, 2019
SMART rev. 8/30/19
1
REVOCABLE LICENSE AGREEMENT
THIS REVOCABLE LICENSE AGREEMENT ("License"), is entered into as of this ____ day of
__________, 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, described as follows (the "Property"):
[Insert Legal Description]
B. Licensee desires to obtain a license from Licensor to maintain a portion of the roadway
near railroad milepost 15.64 to operate a roadway and provide access to a 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:
1. 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 described and shown in Exhibit "A" (the
“Roadway”) for the purposes of establishing a Quiet Zone and to provide access to a
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.
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
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2
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.
5. 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
Licensor’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.
City Revision Date: August 16, 2019
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3
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.
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 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.
City Revision Date: August 16, 2019
SMART rev. 8/30/19
4
9. WORK AT COST OF LICENSEE.
a. Labor and Materials. Licensee shall fully pay for all materials joined or affixed
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.
a. 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
City Revision Date: August 16, 2019
SMART rev. 8/30/19
5
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
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 indemnity 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 full 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 ______________. 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
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.
City Revision Date: August 16, 2019
SMART rev. 8/30/19
6
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.
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:
________________________________
Telephone No: ___________________
Email: __________________________
TO LICENSEE: Public Works Director
City of San Rafael
111 Morphew Street
San Rafael, CA 94901
And in emergencies to:
________________________________
Telephone No: ___________________
Email: ___________________________
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
City Revision Date: August 16, 2019
SMART rev. 8/30/19
7
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 IN DEPENDENT 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 does 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.
City Revision Date: August 16, 2019
SMART rev. 8/30/19
8
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
TRANSIT DISTRICT
CITY OF SAN RAFAEL
By: _
Farhad Mansourian, General Manager
By: _
Jim Schutz, City Manager
ATTEST: ATTEST:
By:
Letitia Ross-Mendoza
Clerk of the Board of Directors
By:
Lindsay Lara, City Clerk
APPROVED AS TO FORM: APPROVED AS TO FORM:
By:
District Counsel
By:
Robert F. Epstein, City Attorney
City Revision Date: August 16, 2019
SMART rev. 8/30/19
EXHIBIT A
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(15 PM 94)
(PAR. ONE)
County
of Morin
GGBHTD &
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I"' n 018-141-os
-, \ County I R= 1,096.22 of Morin
0=4" 14'28" GGBHTO &
L=81.15' MCTO
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\ \18-141-04
CAL PARK PHASE B
CURVE DATA
No. Radius Delta Arc Length ill R= 15.00' Q:::,92"45'03" L=24.28'
R=41.00' 0=93'17'39" L=66. 76'
R=30.00' 0=61'55'31" L=32.42'
R=30.00' 0=39'02'52" L=20.45'
R= 9.50' 0:::,89'20' 14" L= 14.81'
R=18.02' 0=41'46'24" L=13.14'
R=41.00' D=84"06'55" L=60.19'
LEGEND
& CURVE DATA (SEE ABOVE)
(15 PM 94)
{PAR. ONE)
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SHEET 1 OF 2
PCL 1 INGRESS /EGRESS EASEMENT
MULTI-USE PATH ' .
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SAN RAFAEL MARIN COUNTY CALIFORNIA ,
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