HomeMy WebLinkAboutPW 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�'. L •. �. _ •y;�!• � i 1 *r!/" �r' N1
�:�� Y F' .y.t ,� %7q�,e7a' i;• '1 . •,� S:1y7,J �• �,. ��1'' � t••. —t•� _
f `1 �\.~ rR5 Y+�� pati � f �••`!
`.�Y. f
♦ :� ;• '�\y!�•,t t •;} .. Y: �:' r : - `lyqj.. 1�r',."�.4�' �{pjyS,'� _ T�. S�` �.II
cY' •i`' .=1� #j4 "C? , xl .. •Y ri r p,:. ..:7;.tiw:,.Gt•.� uu 8d Ni w
�, }jj �,-^ 1� Y•it1 ••i-t' ,1 tt7�:�r '�c��`�'1�,•.+ 5"'' fl�f!'4:�:)rf'�•.
1 em
't •'s' 'f . [ - _ ;•; •":�••T iif .��T'a'�"�i• �� I4, IN3 f •�:; ; L e O .,:tt =fit'• r StL+.'�S
Vit. •1 i 1 _ r �:•5'�1,!,
jl =i"!!3 �� _.S '• i!jr�`�:ii
E' • � ••y.- � i `� 7•,f (• ` � "rr�KH�ti ek' ,,"•,;;j. ..et'-„ ,4:- ;`;... ,Cr`t, . ,,JJ .d',.r1�7(
h ''i '�`' r:. •:'• � i,i: t-.`F,...
rM
pr!�~.� � r r'+p'r r:['•7T-�f i't �•'w2Jt; }�`. ��l;l',��r� � v;; I'' 4j , i •�•—�f' i �7�
•t ..r.!'•r. ti l,•i;-1' �`j�:r•,k!s.-, f'-i:.SI ... "1 i1:i,:t1
kilk
r'�' «i t'''•_fY� - 41.E
•`�' w,, '"'*ReiSvinad�4�ieiy•� .u, ._ P _..
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