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HomeMy WebLinkAboutNorth San Diego County Transit Development Board; 1995-07-19;93SDlO Page I RIGHT-OF-WAY LICENSE AGREEMENT, made as of this 19 t h day of JULY , 1995, between the NORTH SAN DIEGO COUNTY TRANSIT DEVELOPMENT BOARD ( hereinafter called “BOARD”), owner of the San Diego Northern Railway, hereinafter called “SDNR”, and the CITY OF CARLSBAD, A MUNICIPAL CORPORATION (hereinafter called “CITY”). RECITALS A. BOARD is a public agency created by Sections 125000 et seq. of the Public Utilities Code. BOARD is the owner of certain railroad Right-of-Way assets extending horn Oceanside to San Diego (hereinafter referred to as the “Right-of-Way”). The Right-of-Way is in active use for the operation of freight trains (by the Atcheson, Topeka and Santa Fe Railway Company), intercity passenger trains (by the National Railroad Passenger Corporation) and commuter trains (by BOARD). Due to this active use of the Right-of-Way, safety of the public and the aforesaid rail operators and the structural and physical integrity of the Right-of-Way (including the air space over the Right-of-Way) are of paramount concern to the BOARD. B. CITY desires to enter onto and/or use a portion of the Right-of-Way in a manner which does not interfere with the BOARD’s operations or the safe use of the Right-of-Way by BOARD and other rail entities. BOARD is willing to allow CITY to enter onto and/or use a portion of the Right-of-Way, provided that CITY acts in strict accordance with this License. Now, therefore, the BOARD and CITY agree as follows: 1. Grant of License. 1.1 m. In consideration of payments by CITY to BOARD pursuant to Paragraph 12.2, BOARD hereby licenses CITY to enter upon the Right-of-Way solely for the limited purpose stated in Paragraph 1.2, below. 1.2 Pumose of License. The License granted by BOARD to CITY pursuant to Paragraph 1.1, above, and in accordance with the terms of this License Agreement, is for the purpose of: a. Dredging material out of the Batiquitos Lagoon. b. Modification of Board’s Railroad Bridge 234.8 over said Lagoon. CITY will plastic wrap all timber piles on said bridge as is presently detailed on the contract drawings approved by BOARD. CITY shall install stone protection at the base of piles. This work will be done in the “dry” condition. BOARD will inspect the existing piles after the pile area has been dewatered during and after the piles have been wrapped. After BOARD accepts that the pile wraps have been installed in conformance with the construction contract, said bridge improvements shall become property of BOARD and BOARD will be responsible for maintaining the pile wraps, piles and all elements of said bridge into perpetuity. After completion and acceptance of the work, BOARD will assume all liability for said bridge and will fully indemnify CITY against all claims. CITY, in consideration for BOARD’s acceptance of work described above, will provide to BOARD a lump sum cash payment of $500,000 for all future maintenance of said bridge. The %SOO,OOO payment will be made to BOARD within 60 days of execution of this agreement. c. Running a temporary at-grade discharge pipe in the westerly portion of the Right-of-Way from said Lagoon to the En&as Creek CITY agrees to protect said discharge pipe with a sleeve (or other method of protection as approved by BOARD) at all times said pipe is within 25 feet of centerlhte of any active track CITY shall monitor said temporary pipeline at all times and shall immediately shut down operations if said pipeline ruptures or leaks. d. By prior arrangement with BOARD, CITY may remove signal lines and poles in the vicinity of the project area e. All of said improvements and associated work shall be hereinafter referred to as the “Batiquitos Improvements”. 93SDlO Page2 It is further expressly understood and agreed by CITY that this instrument constitutes a license only to use the Right-of-Way for the above-stated purpose in strict accordance with the terms of this License Agreement and shall not be construed as granting to CITY any right-of-possession, estate, title or interest whatsoever in or to the‘Right-of-Way, or any part thereof. 1.3 Use of Right-of-Wav. It is expressly understood and agreed by CITY that CITY shall use the Right-of-Way without interference or damage to improvements within the Right-of-Way, including, but not limited to, pipe lines, electric transmission lines, communication lines, signal lines and other facilities of like character, existing or constructed during the continuance of this License upon, under or across the Right-of-Way. CITY hereby agrees that it will indemnify and save harmless BOARD from and against any liability for any such interference or damage. In addition, CITY shall replace or repair all public improvements, public utilities and surveying or subdivision monuments which are destroyed or damaged as a result of any work under this Agreement. CITY shall bear the entire cost of replacement or repairs of any and all public or public utility property damaged or destroyed by reason of any work done under this Agreement, whether such property be owned by the United States or any agency thereof, or the State of California, or any agency, district or political subdivision thereof or by the BOARD or any public or private utility corporation or by any combination of such owners. Any repair or replacement shall be to the satisfaction, and subject to the approval of, the BOARD. 1.4 Liabilitv for Title Claim. In case of the eviction of CITY by anyone owning or claiming title to, or any interest in the Right-of-Way, BOARD shall not be liable to CITY for any damage of any nature whatsoever. 1.5 Right of Entrv-Citv of Carlsbad. The City of Carl&ad shall have the right to enter the Right of Way in its normal course of business for the purpose of inspection, certificationand approval of the “Batiquitos Improvements”. 2. Termination of License. 2.1 Misuse of License. If CITY shall use said Right-of-Way for any other purpose than as stated in Paragraph 1.2, above, or fails to act strictly in accordance with the terms of this License Agreement, then BOARD, its successors and assigns may immediately and without prior notice to CITY terminate this License and prevent CITY from using or remaining upon .the Right-of-Way, with or without process of law. 2.2 Comnletion of Purnose. This License and the CITY’s rights hereunder shall terminate automatically upon the completion of the purpose stated in Paragraph 1.2, above. 3. CITY’s Obligation on Termination. CITY agrees that upon termination of this License pursuant to Paragraph 2. above, and at its sole expense, it shall remove any and all equipment, tools, vehicles, materials, etc., placed on the Right-of-Way and/or used in connection with CITY’s entry onto and/or use of the Right-of-Way and CITY shall restore the Right-of-Way in a manner satisfactory to BOARD. Should CITY fail or refuse to comply with the terms of this Paragraph 3, within fifleen days of any request made by BOARD to so do, BOARD may, at its option, perform such work and, in such event, CITY agrees to promptly reimburse BOARD for the cost so incurred within thirty days of invoice from BOARD. Failure on the part of BOARD to perform the obligations of CITY hereunder shall not release CITY from liability hereunder for loss or damage occasioned thereby. 4. No Relocation Ricrhts. CITY hereby acknowledges that it has been informed that BOARD is a public entity and that the subject property has previously been acquired by BOARD for a public purpose. CITY further acknowledges that any rights acquired under this Agreement arose after the date of acquisition of the subject property and that said rights are subject to termination when the property is needed by BOARD for the public purpose. CITY hereby acknowledges and agrees that at the time of said termination of this License Agreement by BOARD, CITY will not be a “displaced person” entitled to any of the relocation assistance or benefits offered to displaced persons. under State or Federal law. 5. Notices. Except as otherwise provided in this Agreement, all notices, statements, demands, approvals, or other communications to be given under or pursuant to this Agreement will be in writing, addressed to the Parties at their respective addresses as provided below, and will be delivered in person, by certified or registered 93sDlO Page3 mail, postage pre-paid, by facsimile, or by overnight express delivery service, charges pre-paid. If mailed or express delivered, the notice will be deemed to have been given 24 hours after the date of mailing or the date of delivery to the express delivery company. The address of the Parties to which such notices are to be sent will be those of which the other Party or Parties actually receive notice, and until such further notice are as follows: BOARD: North San Diego County Transit Development Board 3 11 South Tremont Street Oceanside, California 92054 Attn: Right-of-Way Liaison With a copy to: The Law Ofices of D. Dwight Worden . 462 Stevens Avenue, Suite 102 Solana Beach, California 92075 Attn: James H. Ellis III, Esq. CITY: City of Carlsbad 1200 Carlsbad Village Drive Carl&ad, CA 92008-1989 Attn: John Cahill 6. Continuing Obligations of CITY, No termination or cancellation of this License shall relieve or release CITY from any liability or obligation (whether of indemnity or otherwise) which may have attached or accrued previous to or which may be accruing at the time of such termination or cancellation. 7. CITY’s Aaents. Any contractor or subcontractor performing work on, or in connection with the CITY’s use of or entry onto the Right-of-Way pursuant to this License, shall be conclusively deemed to be the servant and agent of CITY, acting on behalf and within the scope of such contractor’s or subcontractor’s employment for CITY. 8. Irtdemnitv 8.1 During Construction of the Batiauitos Imurovements bv CITY. CITY agrees to assume the defense of, indemnify, and hold the BOARD and the San Diego Northern Railway, Inc. (hereinafter “SDNR”) (hereinafter jointly referred to as the “INDEMNIFIED PARTIES”) and their oflicers, employees, contractors and agents harmless horn and against any and all claims, liability, loss, damage, costs or expenses (including reasonable attorneys’ fees and court costs) arising from or as a result of the death or injury of any person or arising out of any accident, injury, loss or damage whatsoever (including, but not limited to, damage to the Right-of- Way) which shall occur on or adjacent to the Right-of-Way and which shall be directly or indirectly caused by any acts done thereon or any errors or omissions of CITY or its agents, servants, invitees, employees or contractors in connection with the work performed and the obligations assumed by CITY under this License Agreement or which results in any manner from, or in connection with the CITY’s use of and/or entry onto the Right-of-Way and that it will promptly pay to ENDEMNIPIED PARTIES the Ml amount of any loss or damage which INDEMNIFIED PARTIES may sustain, incur or become liable for, and all sums which INDEMNFIED PARTIES may pay, or be compelled to pay, in settlement of any claim on account thereof. CITY shall have the full right to select competent counsel (subject to the approval of INDEMNIFIED PARTIES which may not be unreasonably withheld) to defend INDEMNIFIED PARTIES pursuant to this Paragraph. This indemnification shall specifically apply, but not be limited to, any damages, costs or injuries resulting from CITY’s failure to properly construct any improvement constructed by CITY or its agents, servants, invitees, employees or contractors in connection with the work performed and the obligations assumed by ClTY under this License Agreement. CITY shall not be responsible for (and such indemnity shall not apply to) any injuries or damages which are caused by the established sole negligence or the sole willful misconduct of the INDEMNIFIED PARTIES or their respective officers, employees, contractors and agents. CITY shall pay all the costs incident to such defense, including, but not limited to, attorneys’ fees, investigators’ fees, litigation expenses, settlement payments, and amounts paid in satisfaction ofjudgments. Any and all lawsuits or administrative actions brought 93sD10 Page 4 or threatened on any theory of relief available at law, in equity or under the rules of any administrative agency, shall be covered by this section, including but not limited to the theories of intentional misconduct, negligence, breach of statute or ordinance or upon any theory created by statute or ordinance, State or Federal. 8.2 After. Following BOARD’s final inspection of the Batiquitos Improvements, and provided that said improvements have been constructed in conformance with the construction contract, BOARD shall officially accept said improvements within 30 days. Notwithstanding the provisions above, upon BOARD acceptance of the Batiquitos Improvements , BOARD agrees to assume the defense of, indemnity, and hold the City of Carlsbad and its officers, employees, contractors and agents harmless from and against any and all claims, liability, loss, damage, costs or expenses (including reasonable attorneys’ fees and court costs) arising from or as a result of the death or injury of any person or arising out of any accident, injury, loss or damage whatsoever (including, but not limited to, damage to the Right-of-Way) which shall occur on or adjacent to the Right-of-Way and which shall be directly or indirectly caused by any acts done thereon or any errors or omissions of BOARD or its agents, servants, in&es, employees or contractors in connection with the maintenance of the work performed by CITY in constructing the portions of the Batiquitos Improvements described in Paragraph 1.2(b) (BOARD’s Railroad Bridge 234.8), above, under this License Agreement and that it will promptly pay to CITY the full amount of any loss or damage which CITY may sustain, incur or become liable for, and all sums which CITY may pay, or be compelled to pay, in settlement of any claim on account thereof. BOARD shall have the full right to select competent counsel (subject to the approval of CITY which may not be unreasonably withheld) to defend CITY pursuant to this Paragraph. BOARD shall pay all the costs incident to such defense, including, but not limited to, attorneys’ fees, investigators’ fees, litigation expenses, settlement payments, and amounts paid in satisfaction of judgments. Any and all lawsuits or administrative actions brought or threatened on any theory of relief available at law, in equity or under the rules of any administrative agency, shall be covered by this section, including but not limited to the theories of intentional misconduct, negligence, breach of statute or ordinance or upon any theory created by statute or ordinance, State or Federal. 9. Insurance. BOARD and CITY acknowledge the prior issuance and acceptance of adequate insurance furnished by CITY’s contractor, T.L. James and Company, Incorporated, which CITY is contractually obligated to provide and maintain throughout construction of the Batiquitos Improvements and for one year following acceptance of said improvements by BOARD. 10. Comnliance With Rail RermIations. CITY, by its signature on this License Agreement, acknowledges receipt of the “Regulations Governing Contractors And Others Working On SDNR Right-of-Way”, dated July, 1994, published by the San Diego Northern Railway and agrees to strictly abide by said rules and regulation at all times while on Right-of-Way. 11. Additional Conditions Relating To Construction of Imnrovements. The following conditions shall apply to CITY’s construction and maintenance of the Batiquitos Improvements done by CITY pursuant to its rights under this License Agreement (hereinafter called the “Work”): 11.1 Non-interference. CITY agrees that no Work by itself or its authorized agent will interfere with any railroad operations on the Right-of-Way. 11.2 Reimbursement of BOARD. CITY shall reimburse BOARD for all cost and expense incurred by BOARD (including a 7.2% administrative fee) in connection with the Work including. but without limitation, consultants fees, the expense of furnishing inspectors, security and flag protection as BOARD deems necessary, the installation and removal of false work beneath tracks, equipment rentals and restoration of BOARD Right-of- Way to the same condition as when CITY entered thereon. BOARD’s prior receipt of %20,000 from CITY to cover engineering review of CITY’s plans, as well as payment of current invoices from BOARD to CITY for plan review, not to exceed $2,000, shall be considered full and final payment of all of CITY’s reimbursement obligations pursuant to this paragraph. 11.3 Crossing Right-of-Way. CITY shall notify BOARD as described below whenever CITY or CITY’s contractors will be crossing BOARD’s tracks. 11.4 ADIXOV~ Plans. All Work contemplated by this License Agreement shall be in accordance with plans and specifications approved by the BOARD, the AMERICAN RAILWAY ENGINEERING ASSOCIATION’S MANUAL FOR RAILWAY ENGINEERING, current edition, and all applicable local, state 93SDlO Page 5 and federal regulations, including California PUC regulations. In addition, the CITY shall construct the improvements in accordance with all applicable standards in effect at the time of their construction or as modified when necessary to protect the public safety or welfare or comply with applicable state or federal law or zoning ordinances. 11.5 Board Contacts. Contact Noel Peck of BOARD at (6 19) 967-2868 (3 11 So. Tremont St., Oceanside, CA 92054) and Chip Willett at (619) 9666504 (424 Summit St., Ste. 300, Oceanside, CA 92054) at least 7 days prior to the start of Work for scheduling a pre-construction meeting and obtaining a Flag Protection Request Form if Work will encroach within 25 feet of center line of any active track 11.6 MCI Contact. Contact Lowell Hardy of MCI Telecommunications Corporation at 905 East Discovery Lane, Anaheim, CA 92801 ((3 10) 608-1939) prior to any excavation in the Right-of-Way. 11.7 Comnletion Date. Complete the work on or before January 1, 1997 unless a time extension is granted by the BOARD. If said work is halted by an administrative agency or a court, the time for completion of the work shall be extended by the number or days such work is halted. 11.8 Insnection and AcceDtance. CITY shall at all times maintain proper facilities and safe access for inspection of the Work by BOARD inspectors and to the shops wherein any work is in preparation. Upon completion of the Work the CITY shall request a final inspection by the BOARD. If the BOARD determines that the Work has been completed in accordance with this License Agreement, they shall certify the completion of the improvements. No improvements shall be accepted unless all aspects of the Work have been inspected and determined to have been completed in accordance with the Improvement Plans and applicable standards. 12 Default of CITY. 12.1 Default of CITY in performance of the work shall include CITY’s failure to timely complete construction of the work, CITY’s failure to timely cure any defect in the work, or the termination of this License Agreement pursuant to Paragraph 2 above. CITY and BOARD acknowledge that CITY shall have timely notice of any claim of default, an opportunity for a meeting at which both parties can appear with experts to analyse whether there has been a default and whether a proposed solution will work, and an appropriate time to commence work. Said work shall be permitted to completion as long as the work proceeds expeditiously. 12.2 In the event of a default on the part of the CITY’s contractor(s) in the construction of the Batiquitos Improvements pursuant to this Agreement, CITY shall promptly and continuously exercise all rights available to it under any related performance bond(s) for the completion of the Batiquitos Improvements. If CITY’s good faith efforts to obtain completion through exercise of all rights under the performance bond(s) do not result in reasonable, timely resumption of the work to completion, then BOARD shall have the right to elect to complete the improvements described in Paragraph 1.2(b). above, using all materials, appliances and other property belonging to or already paid for by CITY and necessary for the completion of the improvements and the balance remaining in the defaulted contract relating to that portion of the Batiquitos Improvements that the BOARD has elected to complete. 13. Modification of Agreement. This Agreement and any provision, covenant, condition, or restriction contained herein may be terminated, extended, modified, or amended with the unanimous written consent of the Parties. No such termination, extension, modification or amendment will be effective until a written instrument setting forth its terms has been executed by all of the Parties. 14. Covenant of Non-Discrimination. By its signature on this Agreement, each Party covenants for itself, and its successors and assigns, and all persons claiming under and through them, that there shall be no discrimination or segregation of any person or group of persons on account of sex, marital status, race, color, creed, religion, national origin, or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of any portion of the Right-of-Way. 15. Miscellaneous. 93SDiO Page 6 15.1 Table of Contents and Cantions. The captions of this Agreement are inserted only as a matter of convenience and for reference. It does not define, limit or describe the scope of intent of this Agreement, and they shall not affect the interpretation thereof 15.2 Agreement for Exclusive Benefit of Parties. Except where expressly provided otherwise in this Agreement, the provisions of this Agreement are for the exclusive benefit of the Parties hereto and not for the benefit of any other person nor shall this Agreement be deemed to have conferred any rights, express or implied, upon any other person. Neither CITY, its heirs, legal representatives, successors or assigns, nor any subsequent assignee, shall assign this License or any interest herein, without first securing the written consent of BOARD in each instance, and that at the option of BOARD, this License shall be forfeited by any such unauthorized assignment, transfer or lease or by any assignment or transfer thereof by operation of law. 15.3 Waiver of Default. A waiver by any Party of any default by another Party must be in writing, and no such waiver shall be implied from any omission by a Party to take any action in respect of such default. No express written waiver of any default shall affect any default or cover any period of time other than the default and period of time specified in such express waiver. One or more written waivers of any default in the performance of any provision of this Agreement shall not be deemed to be a waiver of any subsequent default in the performance of the same provision or any other term or provisions contained herein. The consent or approval by a Party to or of any act or request by another Party requiring consent or approval shall not be deemed to waive or render unnecessary the consent or approval to or of any subsequent similar acts or requests. 15.4 No Partnershin. Joint Venture or Princinal-Agent Relationshia Nothing contained in this Agreement shall be deemed or construed by the Parties hereto, or any of them, or by any third person, to create the relationship of principal and agent, or of joint venture, or of partnership between or among any of the Parties under this Agreement. 15.5 Successors. This Agreement shall be binding upon and inure to the benefit of the Parties hereto and their respective successors and assigns of the Parties. 15.6 Governing Laws. This Agreement shall be construed, interpreted, governed and enforced in accordance with the laws of the State of California. 15.7 Consents. Except as otherwise may be provided in this Agreement, whenever a Party is requested to consent to or approve of any matter with respect to which its consent or approval is required by this Agreement, such consent or approval, if given, shall be given in writing. Whenever a Party is required to obtain the consent or approval of any other Party, such consent or approval shall not be unreasonably withheld and shall be given in writing within a reasonable period of time; provided however, that this provision shall not apply where the Agreement specifically states that such consent or approval may be unreasonably withheld or is subject to the sole discretion of the Party or words of similar import. 15.8 Counternarts. This Agreement may be signed in several counterparts, each of which shall be deemed an original, and all such counterparts shall constitute one and the same instrument. 15.9 Time of Essence. Time is of the essence with respect to the performance of each of the covenants and agreements contained in this Agreement. 15.10 Exhibits. All exhibits referred to in this Agreement are incorporated herein by reference. In addition, all Parties acknowledge and agree that all exhibits attached hereto that are diagrammatic in format are intended to depict the general location of the items set forth therein and not the exact location of such items. 15.11 Severabilitv. If any clause, sentence, or other portion of the terms, conditions, covenants, and restrictions of this Agreement becomes or is declared to be illegal, null, or void for any reason, or be held by any court of competent jurisdiction to be so, the remaining portions of this Agreement will remain in full force and effect. 15.12 BOARD Agents. Except as otherwise provided in this License Agreement, the term BOARD shall include BOARD’s staff and independent agents employed by the BOARD. . . 93SDlO Page 7 15.13 CITY’s Agents. Except as otherwise provided in this License Agreement, the term CITY shall include CITY’s staff and independent agents employed by the CITY. 16. PERMITTEE IS ADVISED THAT IT IS A MISDEMEANOR UNDER PENAL CODE SECTION 555 TO ENTER OR REMAIN UPON RAILROAD PROPERTY WITHOUT WRITTEN PERMISSION OF THE OWNER IT IS ALSO A MISDEMEANOR UNDER PENAL CODE SECTION 369i TO WORK WITHIN 20 FEET OF A RAIL LINE WITHOUT PERMISSION (FLAG PROTECTION IS REQUIRED). IN EACH CASE, ALL INDIVIDUALS VIOLATING THESE SECTIONS WILL BE SUBJECT TO A FINE OF UP TO %l,OOO AND/OR IMPRISONMENT OF UP TO SIX MONTHS. NORTH SAN DIEGO COUNTY TRANSIT DEVELOPMENT BOARD 3 11 So. Tremont St. Title: Executive Director Title: Mayor APPROVED AS TO FORM: AlTEST: Aletha L. Rautenkra City of Carlsbad August 1, 1995 San Diego Northern Railway 311 South Tremont Street Oceanside, CA 92054 Attention: Jerry Neben Re: RIGHT-OF-WAY LICENSE AGREEMENT - BATIQUITOS LAGOON The Carlsbad City Council, at its meeting of July 18, 1995, adopted Resolution No. 95-214, approving a license agreement with San Diego Northern Railway for the improvements to the railroad bridge over Batiquitos Lagoon relating to the Batiquitos Lagoon Enhancement Project. Enclosed is a copy of Resolution No. 95-214 and an original of the signed agreement for your records. KRK:ijp Enclosures CMC' .erk 1200 Carlsbad Village Drive - Carlsbad, California 92008-1989 - (619) 434-2808 @