HomeMy WebLinkAbout2021-09-28; City Council; Resolution 2021-218RESOLUTION NO. 2021-218
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD,
CALIFORNIA, AUTHORIZING EXECUTION OF A LICENSE AGREEMENT WITH
NORTH COUNTY TRANSIT DISTRICT FOR ENCROACHMENT OF A CITY STORM
DRAIN SYSTEM WITHIN NORTH COUNTY TRANSIT DISTRICT PROPERTY
Exhibit 1
WHEREAS, in December 2008, a damaged city storm drain was discovered at the property line
on 2550 Carlsbad Boulevard and a North County Transit District, or NCTD, right of way; and
WHEREAS, on Dec. 16, 2008, the City Council ratified the City Manager's declaration of a local
emergency with Resolution No. 2008-342 to mitigate further damage to real property; and
WHEREAS, a new storm drain outfall structure was constructed on NCTD property as part of the
emergency repairs; and
WHEREAS, on May 29, 2009, the City Council accepted the completed emergency repairs with
Resolution No. 2009-271; and
WHEREAS, NCTD has policies governing the use of its real property and requires the city to
obtain permission for specified use of property; and
WHEREAS, NCTD recently conducted an internal review of their right-of-way, specifically
Assessor Parcel Number 203-054-28, and confirmed the encroachment of the outlet structure onto
their property; and
WHEREAS, staff from both agencies could not locate the required NCTD license agreement for
the city to encroach onto NCTD property; and
WHEREAS, a license agreement has been negotiated with NCTD to provide the city with the
right to own, operate and maintain the storm drain outfall structure constructed within the NCTD right-
of-way as part of the emergency repairs; and
WHEREAS, the City Council has determined that it is necessary, desirable and in the public
interest to execute a license agreement with NCTD.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Carlsbad, California, as
follows:
1. That the above recitations are true and correct.
2. That the Mayor is authorized and directed to execute the License Agreement with NCTD
which is attached hereto as Attachment A.
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LICENSE AGREEMENT
THIS LICENSE AGREEMENT (“Agreement”) is made and entered into as of the effective date of , 2021 (“Effective Date”) by and between the North County Transit District (“NCTD”), a public agency existing under the laws of the State of California, pursuant to California Public Utilities Code sections 125000, et seq. and City of Carlsbad, a municipal corporation (“Licensee”).
RECITALS
A. NCTD has policies regulating and governing the use of its property (“Property”) and Right-of-Way(“ROW”) (sometimes collectively, the “Property”).
B. Licensee has applied for the issuance of a License in accordance with such policies and NCTDhas agreed to allow Licensee to use that portion of the ROW identified in Exhibit “A” and Exhibit“B” ("License Area"), subject to the terms and conditions of this Agreement.
C. Licensee agrees to be bound by the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual promises contained herein,the parties agree as follows:
1.License to Use. In consideration of the covenants and conditions set forth in this Agreement,NCTD licenses and permits Licensee to own, operate, and maintain an L-shaped storm drainagestructure, to include an approximate forty-nine foot (49’) long 24” X 48” reinforced concrete box,storm drain cleanout, four foot (4’) long 24” concrete pipe, headwall, rip rap energy dissipater, andrelated appurtenances (“Facility”), more particularly described in attached Exhibit “A“ LegalDescription and Exhibit “B” License Plat.
2.Authority Not Exclusive. This License is non-exclusive. The Licensee shall respect the rightsand property of NCTD and other authorized users of the ROW, easements, power poles, streetlight poles, vaults, and conduits. Except as otherwise required by applicable law, disputes betweenthe Licensee and parties other than NCTD over the use, pursuant to this Agreement, of theeasements, power poles, street light poles, vaults, conduits and other rights-of-way shall besubmitted to NCTD for resolution. Licensee expressly agrees the Facility shall not interfere withany use of the surface property.
3.Relocation. Licensee acknowledges that the License Area is used in connection with NCTD’spublic purpose and other services to the public, and agrees that such uses by NCTD are superiorin all respects to all uses by Licensee. Licensee shall, at Licensee's sole expense and within thirty(30) days after receiving written notice from NCTD, protect, temporarily relocate, or remove theFacility if NCTD determines, in its sole and absolute discretion that the Facility is inconsistent orinterferes with NCTD’s current or planned use of the License Area or ROW. In consideration ofNCTD’s agreement to enter into this Agreement, Licensee hereby waives any and all rights it maynow have, or hereafter obtain, to any “relocation assistance benefits” pursuant to the FederalUniform Relocation Assistance Act (42 U.S.C. § 4601 et seq.), the California Relocation Assistancelaw (Cal. Gov. Code § 7260 et seq.) or any other statute that replaces or provides rights similar tosuch statutes, if NCTD requires Licensee to relocate the Facility or makes use of the ROW in sucha way as to ‘displace’ Licensee from the License Area. Licensee shall in the future execute anyfurther documentation of the release and waiver provided hereby as NCTD may reasonably requireand pursuant to the terms of this agreement.
ATTACHMENT A
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4. Compensation. Licensee shall pay to NCTD the sum of two thousand six hundred ninety dollars ($2,690) per year ("License Fee") in advance, commencing on the Effective Date. The License Fee is subject to adjustment after the Effective Date pursuant to the Board adopted Fee Schedule as may be amended from time to time, but no more than once per year on the anniversary of the Effective Date (each such date called an "Anniversary Reset Date").
4.1 Nothing in this Section 4 shall affect the right of NCTD to require Licensee to relocate or remove the Facility as set forth in Section 3 and Section 5.2.
4.2 Late Charge. Licensee acknowledges that late payment by Licensee to NCTD of License Fee, or other sums due under this Agreement will cause NCTD to incur costs not contemplated by this Agreement, the exact amount of which will be extremely difficult to ascertain. Such costs include, but are not limited to, processing and accounting charges and late charges which may be imposed on NCTD. Accordingly, if any installment of License Fee or any other sum due from Licensee shall not be received by NCTD or NCTD's designee within ten (10) days after such amount shall be due, then, without any requirement for notice from NCTD, Licensee shall pay to NCTD a late charge equal to ten percent (10%) of such overdue amount. The parties hereby agree that such late charge represents a fair and reasonable estimate of the costs NCTD will incur by reason of late payment by Licensee. Acceptance of such late charge by NCTD shall in no event constitute a waiver of Licensee's default with respect to such overdue amount, nor prevent NCTD from exercising any of the other rights and remedies granted under this Agreement or at law.
4.3 Payment of License Fee. Payments shall be made payable to North County Transit District at 810 Mission Avenue, Oceanside, California 92054; provided that NCTD may by written notice to Licensee direct that the License Fee be made payable to NCTD at such address as NCTD may designate in such notice, or to such other person as NCTD may designate at such address as NCTD may designate in such notice.
5. Limitations on Use.
5.1 Licensee shall comply with all applicable terms, conditions and requirements of NCTD's policies regarding NCTD’s ROW and all other NCTD ordinances, rules and regulations, which are available on NCTD’s website and upon request to NCTD. Licensee shall comply with all applicable laws, rules and regulations of the Federal, State, County, local governments and all administrative agencies thereof which may have jurisdiction over Licensee's use of the License Area and the use, construction, and maintenance of the Facility.
5.2 Licensee acknowledges that the Property is used in connection with NCTD’s public purpose and other services to the public, and agrees that such uses by NCTD are superior in all respects to all uses by Licensee. Licensee's use of the License Area must not in any way interfere with NCTD's continuing control over the Property or NCTD's expressed continued ability to carry out its functions. NCTD shall have the right, without further liability to Licensee, to terminate this Agreement pursuant to Section 13 in order to maintain continuing control over the License Area or NCTD’s expressed continued ability to carry out its functions.
5.3 Licensee shall not cause or permit any Hazardous Material to be used, stored, transported, generated, or disposed in or about the License Area by Licensee, Licensee's agents, employees, contractors, licensees, or invitees. "Hazardous Material" means any hazardous, toxic, or infectious substance, material, or waste which is or becomes regulated by any local governmental entity, the State of California, or the United States Government under any law, regulation or ordinance regulating or controlling any Hazardous Material (the "Hazardous Materials Laws"), including, without limitation, any material, or substance which is: (i) defined
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as a "hazardous waste," "extremely hazardous waste" or "restricted hazardous waste" under California Health and Safety Code §§ 25115, 25117 or 25122.7, or listed pursuant to California Health and Safety Code § 25140, (ii) defined as a "hazardous substance" under California Health and Safety Code § 25316, (iii) defined as a "hazardous material," "hazardous substance" or "hazardous waste" under California Health and Safety Code § 25501 (iv) all Division 6.2 materials defined under 49 C.F.R. § 173.134 (v) petroleum or petroleum product, (vi) asbestos, (vii) designated as a "hazardous substance" pursuant to § 311 of the Federal Water Pollution Control Act (33 U.S.C. § 1317), (viii) defined as a "hazardous waste" pursuant to § 1004 of the Federal Resource Conservation and Recovery Act, 42 U.S.C. § 6901, et seq. (42 U.S.C. § 6903), or (ix) defined as a "hazardous substance" pursuant to § 101 of the Comprehensive Environmental Response Compensation and Liability Act, 42 U.S.C. § 9601 et seq. (42 U.S.C. § 9601).
5.4 No use, construction, or maintenance by Licensee or on Licensee's behalf on the License Area will interfere with any railroad operations on the ROW.
5.5 Licensee shall not cross or permit the crossing over of the railroad tracks on the ROW except at public crossings approved by the California Public Utilities Commission.
5.6 Licensee shall not leave any personal property or equipment on the ROW unattended at any time.
5.7 Licensee shall not install or use any underground storage tanks in the License Area.
6. Insurance. Without limiting Licensee’s indemnification obligations to NCTD under this Agreement, Licensee shall provide and maintain during the term of this Agreement, at Licensee’s sole expense, insurance in the amounts and form specified in Exhibit “C”, INSURANCE REQUIREMENTS. Licensee shall name NCTD as an additional insured on each of the aforementioned insurance policies and the policies shall state that they are primary and that any policies NCTD maintains shall be noncontributory. Licensee shall provide NCTD with written certificates of insurance evidencing such coverage. Said policies shall expressly provide that the policies shall not be canceled or altered without at least thirty (30) days prior written notice to NCTD. Said policies shall be with insurance companies with an A.M. Best rating of AVII or better. Each policy limit herein shall be increased by Licensee, upon request by NCTD, to the amount NCTD increases its policy limits for other contracts, at Licensee’s sole cost.
NCTD takes no responsibility for the protection of Licensee’s property from acts of vandalism by third parties. The insurance requirements may be changed by NCTD upon giving of sixty (60) days’ notice to Licensee; provided that the requirements set forth in Exhibit C shall be the minimum insurance requirements during the Term.
7. Indemnification. Licensee agrees to protect, save, defend, and hold harmless NCTD and its Board and each member of the Board, the National Railroad Passenger Corporation (“AMTRAK”), the Southern California Regional Rail Authority (“SCRRA” or “Metrolink”), and the Burlington Northern Santa Fe Railway Company (“BNSF”); and their respective officers, agents and employees from any and all liability or claim of liability, loss or expense, including defense costs and legal fees and claims for damages of whatsoever character, nature and kind, whether directly or indirectly arising from or connected with an act or omission of Licensee, or any employee, agent, invitee, or contractor of Licensee, or other person acting by or on behalf of Licensee on or about the ROW, including, but not limited to, liability, expense, and claims for bodily injury, death, personal injury, or property damage; provided, however, that nothing herein shall relieve any party indemnified hereunder from liability to the extent that such liability arises from such party's sole established negligence or willful misconduct. The requirements as to the types and limits of
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insurance coverage to be maintained by Licensee as required by Section 6, and any approval of such insurance by NCTD, are not intended to and shall not in any manner limit or qualify the liabilities and obligations otherwise assumed by Licensee pursuant to this Agreement, including but not limited to the provisions concerning indemnification. This indemnity shall not require payment of a claim by NCTD or any of its officers, employees, agents or volunteers as a condition precedent to NCTD’s recovery hereunder. Licensee’s obligation to indemnify hereunder shall not be restricted to insurance proceeds, if any, received by NCTD and its directors, officers, employees, agents and volunteers.
Nothing contained herein shall prohibit NCTD, in its sole discretion, from participating in the defense of any demand, claim, action, proceeding, or litigation. In no event shall NCTD’s participation in the defense of any demand claim, action, proceeding, or litigation affect the obligations imposed upon Licensee herein.
8. Construction.
8.1 Any work performed or caused to be performed by Licensee on the License Area shall be performed (a) at Licensee’s sole cost and expense; (b) in accordance with any and all applicable laws, rules and regulations (including the NCTD’s ordinances, rules and regulations) and (c) in a manner that is satisfactory to NCTD and which meets or exceeds the then applicable standards of the industry for such work.
8.2 Prior to the commencement of any work, Licensee shall submit to NCTD for review and approval construction drawings, specifications, work plans and any other relevant information NCTD deems necessary, including but not limited to documents as required pursuant to Section 8., to enable NCTD to determine the scope and nature of the proposed work and the potential effect of such work on the ROW and train operations. NCTD may approve or disapprove any work or provision in such documents in NCTD's sole and absolute discretion, and NCTD may require such changes or impose such conditions as NCTD, in its sole and absolute discretion, deems necessary or appropriate.
8.3 Licensee shall provide NCTD and all holders of underground utility facilities located within the License Area with at least seven (7) calendar days written notice prior to commencement of any work on the License Area. In the event of an emergency, Licensee shall notify NCTD personally or by telephone prior to commencing any work. Upon completion of any work, Licensee shall restore the License Area to its condition immediately preceding the commencement of the work.
8.4 As applicable for any construction, entry or work within the ROW the following shall apply:
8.4.1 Every individual who will be entering upon the License Area or ROW under this Agreement, before entering, shall first attend a class conducted by NCTD or NCTD's designee on Railroad Worker Protection (“RWP”) Safety rules and regulations. Licensee shall pay all costs associated with such class.
8.4.2 The need for flag protection for Licensee’s operations on or adjacent to the ROW shall be determined in the sole discretion of NCTD or NCTD’s designee. In the event that NCTD or NCTD’s designee determines that flag protection is necessary, Licensee shall not enter upon or use the License Area until flag protection has been provided. Licensee shall submit for flag protection services in accordance with NCTD policies and procedures. Licensee shall pay all costs of flag protection. NCTD or NCTD’s designee shall use reasonable efforts to provide flag protection on the dates and times of Licensee's requested entries, provided that any work by NCTD, BNSF, or AMTRAK that
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requires flag protection shall take priority. NCTD shall not be liable for any costs, expenses, or claims if flag protection is not provided on Licensee's requested dates or times of entry.
8.4.3 Licensee shall, upon NCTD's request and at Licensee's expense, install barrier fencing, K-rail, and/or landscaping to shield the railroad track area from public access and or the improvements thereon from public view. NCTD shall have the right to review and approve fencing and/or landscaping plans prior to installation.
8.4.4 NCTD's review and inspection of the construction drawings, specifications, work plans, and other construction documents, including but not limited to documents as required pursuant to this Section 8 is for the purpose of examining the general arrangement, design, and details of the work for potential impact on the ROW, ROW safety and railroad operations. NCTD and NCTD's employees, consultants, and agents assume no responsibility for and make no representations or warranties, express or implied, as to the design, condition, workmanship, or adequacy of the drawings, specifications, Permit Registration Documents (as defined below) or ESCP (as defined below), or Licensee’s compliance with the same, construction documents, or work. No review, comments, requirements, or inspection shall relieve Licensee or Licensee's engineers, contractors, subcontractors, or consultants from the entire responsibility for the errors or omissions in the drawings, specifications, Permit Registration Documents (as defined below), ESCP (as defined below), or construction documents, or for the quality or adequacy of the work.
8.5 Storm Water Pollution Prevention: Compliance with Construction General Permit for the Agreement:
8.5.1 If coverage under the Construction General Permit and/or NCTD MS4 Program requirements (as defined in this Section 8) pursuant to applicable NCTD, local, state, and federal ordinances, laws, rules and regulations is required, Licensee shall prepare, implement and monitor a Storm Water Pollution Prevention Plan (“SWPPP”) that is consistent with the current NCTD SWPPP template and is in compliance with the current Construction General Permit for the purpose of preventing, among other things, the discharge of pollutants into receiving waters. This includes elimination of non-storm water pollution discharges such as improper dumping, spills or leakage from storage tanks or transfer areas. If coverage under the Construction General Permit is required, Licensee shall not perform or cause to be performed any construction or demolition activities on the License Area until Licensee obtains a Waste Dischargers Identification number, as that term is defined in the Construction General Permit. For purposes of this Section 8, “Construction General Permit” shall mean the State Water Resources Control Board (“SWRCB”) National Pollutant Discharge Elimination System (“NPDES”) General Permit for Waste Discharge Requirements for Discharges of Storm Water Runoff Associated with Construction and Land Disturbance Activities, as it may be amended or superseded, (currently Order No. 2012-0006-DWQ); and MS4 Program shall mean the RWQCB issued Phase II Small Municipal Separate Storm Sewer System (“MS4”) Program (currently Order No. 2013-0001-DWQ) as it may be amended or superseded.
8.5.2 The Licensee shall prepare, implement and monitor an Erosion and Sediment Control Plan (“ESCP”) consistent with the current NCTD ESCP template for the purpose of preventing the discharge of pollutants into receiving waters for all construction or demolition activities performed or caused to be performed by Licensee on the License Area for activities not requiring coverage under the Construction General Permit, the
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industrial general permit or an individual National Pollutant Discharge Elimination System permit, including activities that result in a total land disturbance of less than one acre that are not part of a larger common plan of development or sale. This includes elimination of non-storm water pollution discharges such as improper dumping, spills or leakage from storage tanks or transfer areas.
8.5.3 Without limiting the provisions set forth in Sections 5.1, 8.1, 8.5.1 and 8.5.2, the Licensee shall comply with the NCTD Storm Water Management Program and all NCTD, local, state and federal ordinances, laws, rules and regulations governing storm water discharges, including but not limited to those associated with construction and demolition activities such as clearing, excavating, grading, demolition and other land disturbances.
8.5.4 The Licensee shall pay and be responsible for all fees, as applicable and as required by SWRCB, during the term of this Agreement.
8.5.5 The Licensee shall submit all SWRCB required documentation, as applicable and including but not limited to Permit Registration Documents, as that term is defined in the Construction General Permit, to the SWRCB through the SWRCB SMARTS online system and shall provide a copy of such documentation and proof of submittal to NCTD.
8.5.6 As required by NCTD’s Phase II MS4 Permit (Order No. 2013-0001-DWQ) (“MS4 Permit”), NCTD may conduct periodic water sampling associated with any drainage facility installed by Licensee within the License Area. Licensee shall be required to reimburse NCTD for costs associated with collection, sampling and reporting. NCTD may require Licensee to perform corrective actions, at Licensee's sole cost and expense, in order to meet the requirements of the MS4 Permit.
9. Reimbursement of NCTD. Licensee shall reimburse NCTD, within thirty (30) days of invoice, for all cost and expense incurred by NCTD in connection with NCTD's review and processing of this Agreement and any work performed by or for Licensee on the License Area. These costs include, but are not limited to, NCTD staff time and consultants’ fees for the expenses of reviewing construction documents, ESCPs, Permit Registration Documents, ROW support services, inspections, monitoring, security, the installation and removal of false work beneath tracks, equipment rentals, and restoration of the ROW to the same condition as when Licensee entered thereon. Upon execution of this Agreement, Licensee shall deposit with the NCTD the amount determined by NCTD to be the probable amount of reimbursable expenses. NCTD may deduct the costs and expenses from the deposit as such costs and expenses are incurred. Costs of services provided by NCTD employees will be charged at the employees' fully burdened hourly rates (monthly salary and benefits). Services provided by NCTD consultants, equipment rentals, and other third-party costs will be charged at cost. Upon demand by NCTD, Licensee shall make any additional deposits that NCTD determines are necessary to reimburse NCTD for the costs and expenses incurred by NCTD. In the event that the costs and expenses incurred by NCTD exceed the amounts deposited, Licensee shall reimburse NCTD for all such costs and expenses within thirty (30) days of invoice.
10. Maintenance and Repair. Licensee shall, at Licensee's sole expense, maintain the Facility and License Area in a condition satisfactory to NCTD and in accordance with applicable governmental codes. Licensee shall be responsible for any citations issued by any agency having jurisdiction as a result of Licensee’s failure to comply with any applicable law, regulation, ordinance, rule, or order.
11. Taxes and Assessments. Licensee shall pay before delinquency any and all real and personal property taxes, general and special assessments, license fees, and other charges of any
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description including, without limitation, any possessory interest tax, that are levied and assessed from the commencement of this Agreement until the expiration or termination of this Agreement against the Property, Licensee's possessory interest in the Property, Licensee's Leasehold Estate, any subleasehold estate, improvements located on the Property, or personal property installed or located in or on the Property or improvements (collectively, "Taxes and Assessments"), to the full extent of the installments of the Taxes and Assessments falling due during the term of this Agreement. All payments of Taxes and Assessments shall be made directly to the taxing or charging authority. Licensee shall provide receipts or other proof of payment of the Taxes and Assessments to NCTD prior to the date that the Taxes and Assessments become delinquent.
11.1 Licensee's Right to Contest Taxes and Assessments. Licensee at its sole cost shall have the right, at any time, to seek a reduction in the assessed valuation of the Property or to contest any Taxes and Assessments that are to be paid by Licensee. If Licensee seeks a reduction of or contests the Taxes and Assessments, the failure on Licensee's part to pay the Taxes and Assessments shall not constitute a default as long as Licensee, before the delinquency date, furnishes to NCTD a surety bond issued by an insurance company qualified to do business in California in an amount equal to one hundred twenty-five percent (125%) of the total amount of Taxes and Assessments in dispute. The bond shall hold NCTD and the Property harmless from any damage arising out of the proceeding or contest and shall insure the payment of any judgment that may be rendered. NCTD shall not be required to join in any proceeding or contest brought by Licensee unless the provisions of any law require that the proceeding or contest be brought by or in the name of NCTD. In that case NCTD shall join in the proceeding or contest or permit it to be brought in NCTD's name as long as NCTD is not required to bear any cost. Licensee, on final determination of the proceeding or contest, shall immediately pay or discharge any decision or judgment rendered, together with all costs, charges, interest, and penalties incidental to the decision or judgment.
11.2 Transfer Taxes. If a transfer tax is payable to any governmental agency or agencies as a result of this Agreement, Licensee shall pay such transfer tax directly to the taxing authority or authorities when it is due.
11.3 Possessory Interest Tax Notice. Licensee acknowledges that NCTD has given notice to Licensee that the property interest created by this Agreement may be subject to propertytaxation pursuant to Revenue and Taxation Code § 107.6 or other statutes, and that Licensee may be subject to the payment of property taxes levied on the possessory interest created by this Agreement.
11.4 Indemnification. NCTD shall not be liable for, and Licensee shall indemnify, defend and hold NCTD and its directors, officers, employees, volunteers and agents and the Property and any improvements now or hereafter located on the Property free and harmless from any claims, demands, liabilities, judgments, fines, losses, damages, expenses, charges or costs of any kind or character, including attorneys' fees and court costs, resulting from any Taxes and Assessments required by this Article to be paid by Licensee, and from all interest, penalties, and other sums imposed thereon, and from any sale or other proceeding to enforce collection of any Taxes and Assessments.
11.5 Payment by NCTD. Should Licensee fail to pay within the time specified in this Article any Taxes and Assessments required by this Article to be paid by Licensee, NCTD may, without notice to or demand on Licensee, pay, discharge, or adjust said Taxes and Assessments for the benefit of Licensee. In such event, Licensee shall reimburse NCTD pursuant to Section 9.
12. Default If Licensee fails to perform any obligation under this Agreement, Licensee shall pay all costs and expenses incurred by NCTD in obtaining performance of such obligations, including costs
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of suit and reasonable attorney's fees. If Licensee uses the ROW or Property for any purpose not expressly authorized by this Agreement or fails to act strictly in accordance with the terms and conditions of this Agreement, and if such default is not corrected within thirty (30) days' notice from NCTD to Licensee, NCTD may terminate this Agreement and prevent Licensee from using or remaining upon the ROW. If NCTD determines that any default by Licensee does or has the potential to cause a danger to the ROW or railroad operations, NCTD may immediately and without prior notice to Licensee terminate this Agreement and prevent Licensee from using or remaining upon the ROW or Property, with or without process of law.
13. Termination for Convenience. Notwithstanding any other section or provision of this Agreement, NCTD may terminate this Agreement for convenience by providing one hundred eight (180) days written notice.
14. Termination. Upon termination of this Agreement, Licensee shall, at Licensee's sole expense, remove the Facility and all other Licensee improvements in or upon the ROW or Property and restore the ROW or Property to a manner satisfactory to NCTD. Should Licensee fail or refuse to comply with the terms of this Section 14, NCTD may, at its option, perform such work, and Licensee shall reimburse NCTD for all costs and damages so incurred.
15. Service of Notice. Except as otherwise provided in this Agreement, any notice required or permitted to be given hereunder shall be in writing and may be given by personal delivery or by certified or registered mail, and shall be deemed sufficiently given if delivered or addressed to:
NCTD: North County Transit District LICENSEE: City of Carlsbad 810 Mission Avenue 1635 Faraday Avenue Oceanside, CA 92054 Carlsbad, CA 92008-7314 Attention: Real Estate Department Attention: Public Works
Mailed notices shall be deemed given upon actual receipt at the address required, or forty-eight (48) hours following deposit in the mail, postage prepaid, whichever first occurs. Either party may by notice to the other specify a different address for notice purposes.
In the event the tracks become damaged, blocked or fouled in any way, Licensee shall immediately notify NCTD Rail Operations Center at (760) 966-6700.
16. Acceptance of License Area.Licensee accepts the License Area in its present physical "AS-IS" condition, and agrees to make no demands upon NCTD for any improvements or alterations. By signing this Agreement, Licensee represents and warrants that Licensee has independently inspected the License Area and the area immediately surrounding and made all investigations, tests, and observations necessary to satisfy Licensee as to the condition of the License Area, zoning and land use laws, regulations, and ordinances affecting the License Area, and all of the conditions, restrictions, encumbrances, and other matters of record relating to the License Area. Licensee agrees that Licensee is relying solely on Licensee's independent inspection and that NCTD has made no warranty or representation regarding the License Area. NCTD shall not be responsible for any latent defect or change in condition in the License Area caused by Licensee or any of Licensee’s agents and Licensee's obligations under this Agreement shall not be diminished on account of any defect in the License Area, any change of condition, or any damages occurring on the License Area caused by Licensee or any of Licensee’s agents. In case of the eviction of Licensee by anyone owning or claiming title to or any interest in the License Area, NCTD shall not be liable to Licensee for any damage of any nature whatsoever or to refund any moneys paid hereunder. Licensee hereby releases NCTD from all future claims, actions, or demands that Licensee may have or may hereinafter have, known and unknown, in any way relating to the quality, fitness, or condition of the License Area, caused by Licensee or any of Licensee’s agents, and
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17.11 Licensee’s Agreement Administration. Licensee confirms that Licensee’s License Agreement Administrator has been given full operational responsibility for compliance with the terms of this Agreement.
17.12 Business Days. The term “business days” as used in this Agreement means any calendar day other than a Saturday, Sunday, or official NCTD holiday.
17.13 Cumulative Remedies. If a default under this Agreement occurs, each party’s remedies shall be limited to those remedies set forth in this Agreement. The remedies under this Agreement are cumulative and not exclusive of any other remedies under this Agreement to which the non-defaulting party may be entitled.
17.14 Entire Agreement. This Agreement, together with all attached addenda, exhibits and riders attached to this Agreement, constitutes the entire agreement between NCTD and Licensee with respect to the subject matter of this Agreement, and all prior or contemporaneous agreements, understandings and representations, oral or written, are superseded.
17.15 Governing Law and Venue. This Agreement shall be governed, construed and enforced in accordance with the laws of the State of California. If any action is brought to interpret or enforce any term of this Agreement, the action shall be brought in a State or Federal court situated in the County of San Diego, State of California.
17.16 Vibration and Noise from Train Operation; Barricades. Licensee recognizes and acknowledges that railroad tracks are located on or adjacent to the License Area and that the operation of trains over the tracks does and will produce vibrations which may affect the Facility and Licensee's use of the License Area. With knowledge and understanding of these facts, Licensee by execution of this Agreement, agrees that no legal action or complaint of any kind whatsoever shall be instituted against NCTD by Licensee or on Licensee’s behalf as result of vibrations or as a result of the use of the railroad tracks in general.
17.17 Public Document. Licensee acknowledges that this Agreement and all documents relating hereto are “public records” (as defined in Section 6252(e) of the California Government Code), except for any documents relating to Tenant’s financial condition or otherwise exempt from such status pursuant to law, and that public records, with limited exemptions, are subject to public disclosure pursuant to the provisions of California Government Code, commencing with Section 6250.
17.18 Interpretation. The language of this Agreement shall be construed simply according to its plain meaning and shall not be construed for or against either party.
17.19 Authority. If Licensee is a corporation, trust, or general or limited partnership, Licensee, and each individual executing this Agreement on behalf of such entity represent and warrant that such individual is duly authorized to execute and deliver this Agreement on behalf of said entity. If Licensee is a corporation, trust or partnership, Licensee shall, deliver to NCTD evidence of such authority satisfactory to NCTD upon execution of this Agreement.
17.20 Counterparts. This instrument may be executed in any number of counterpart copies, each of which counterpart copy shall be deemed an original for all purposes.
[SIGNATURES ON NEXT PAGE]
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EXHIBIT “A”
LEGAL DESCRIPTION
ASSESSORS PARCEL NUMBERS: 203-054-28
VESTING: NORTH SAN DIEGO COUNTY TRANSIT DEVELOPMENT BOARD
ALL THAT PORTION OF THAT PARCEL IN THE CITY OF CARLSBAD, COUNTY OF SAN
DIEGO, STATE OF CALIFORNIA, AS DESCRIBED IN THAT QUITCLAIM DEED RECORDED
DECEMBER 15,1992 AS DOCUMENT NO 1992-0802209 IN THE OFFICE OF THE COUNTY
RECORDER OF SAID COUNTY, DESCRIBED AS FOLLOWS:
COMMENCING AT THE SOUTHEAST CORNER OF LOT 176 OF GRANVILLE PARK NO. 2 AS
SHOWN ON MAP 2037 RECORDED JUNE 18, 1927 AS FILE NO. 36270 IN THE OFFICE OF THE
COUNTY RECORDER OF SAID COUNTY;
THENCE ALONG THE NORTHEASTERLY LINE OF SAID LOT 176 NORTH 41°58’00” WEST, 57.03
FEET TO THE TRUE POINT OF BEGINNING;
THENCE CONTINUING ALONG SAID NORTHEASTERLY LINE NORTH 41°58’00” WEST, 19.30
FEET;
THENCE LEAVING SAID NORTHEASTERLY LINE NORTH 85°39’56” EAST, 25.72 FEET;
THENCE NORTH 4°20’04” WEST 13.01 FEET;
THENCE NORTH 85°39’56” EAST 20.00 FEET;
THENCE SOUTH 4°20’04” EAST 28.29 FEET;
THENCE SOUTH 85°39’56” WEST 33.94 FEET TO SAID NORTHEASTERLY LINE OF LOT 176
AND THE TRUE POINT OF BEGINNING.
CONTAINING 869 SQUARE FEET MORE OR LESS.
ATTACHED HERETO AND MADE A PART HEREOF IS A PLAT LABELED EXHIBIT ‘B’.
THIS REAL PROPERTY DESCRIPTION HAS BEEN PREPARED BY ME, OR UNDER MY
DIRECTION, IN CONFORMANCE WITH THE PROFESSIONAL LAND SURVEYORS ACT.
SIGNATURE
LICENSED LAND SURVEYOR
DATE
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EXHIBIT C – INSURANCE REQUIREMENTS
Without limiting Licensee’s indemnification of NCTD as provided herein, Licensee shall provide and
maintain at its own expense during the term of this License the below listed and described policies of
insurance covering its operations hereunder. Evidence of such insurance satisfactory to NCTD along
with required endorsements will be delivered to NCTD concurrent with execution of this License. Such
evidence shall include certificate of insurance (Accord Form 25-S or equivalent). All evidence of
insurance shall be issued by a properly authorized officer, agent or qualified representative of the insurer
and shall certify the names of the insured, any additional primary insureds, where appropriate, the type
and amount of the insurance coverage, the location and operations to which the insurance applies and
the expiration date.
1. Commercial and General Liability: Licensee shall provide and maintain the following commercial
and general liability insurance:
A. Coverage for commercial general liability insurance shall be at least as broad as the Insurance
Services Office Commercial General Liability (occurrence form CG 0001) coverage.
B. Licensee shall maintain limits of no less than two million dollars ($2,000,000) per occurrence and
four million dollars ($4,000,000) aggregate limits for bodily injury, personal injury and property
damage, including injury or damage. The general liability policies are to be endorsed to contain
the following provisions:
a. NCTD, its Board of Directors, officers, employees, agents and volunteers are to be
covered as additional insureds as respects liability arising out of the Property/Right-of-
Way licensed by Licensee. The coverage shall contain no special limitations on the
scope of protection afforded to NCTD, its directors, officers, employees, agents and
volunteers.
b. For any claims related to this License, Licensee’s insurance shall be primary insurance
as respects to NCTD, its Board of Directors, officers, employees, agents and volunteers.
Any insurance, pooled coverage or self-insurance maintained by NCTD, its directors,
officers, employees, agents and volunteers shall not be contributory.
c. Licensee’s insurance shall apply separately to each insured against whom claim is made
or suit is brought, except with respect to the limits of the insurer’s liability.
d. The liability insurance shall indemnify the Licensee and its contractors against loss from
liability imposed by law upon, or assumed under contract by the Licensee or its
contractors for damages on account of such bodily injury (including death), property
damage, personal injury and completed operations and products liability.
e. Any failure to comply with reporting or other provisions of the policies including breaches
of warranties shall not affect coverage provided to NCTD, its Board of Directors, officers,
employees, contractors, agents or volunteers.
f. The insurance shall be provided on a policy form written by underwriters through an
agency satisfactory to NCTD, which includes a cross-suit clause, and covers bodily injury
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and property damage liability, owned and non-owned vehicles and equipment, blanket
contractual liability and completed operations liability.
2. Railroad Protective Liability:
A. The Licensee shall obtain a railroad protective liability policy for work done within fifty (50) feet of
railroad tracks. The standard limits shall be three million dollars ($3,000,000) per occurrence limit
and six million dollars ($6,000,000) aggregate. NCTD reserves the right to increase these limits,
depending on the scope of work related to the License.
B. All work requiring railroad protective liability insurance shall name in the endorsement and schedules as additional insureds the following entities, including their directors, officers, agents
and employees as their interests may appear:
a. North County Transit District (NCTD) b. Burlington Northern Santa Fe Railway (BNSF)
c. National Railroad Passenger Corporation (AMTRAK)
3. Automobile Liability: Coverage for automobile liability insurance shall be at least as broad as
Insurance Services Office Automobile Liability Coverage (Form CA 0001). Limits shall be not less
than two million dollars ($2,000,000) for bodily injury and property damage each accident limit from
automobiles owned, leased, hired or borrowed by Licensee. The insurance shall indemnify against
loss from liability imposed by law for damages on account of bodily injury, property damage, and
personal injury. The automobile liability policy shall cover all owned, non-owned, leased and hired
automobiles.
4. Workers Compensation and Employer’s Liability: Licensee and its contractors and assigns shall
cover or under the applicable statutory California State or Federal laws relating to workers’
compensation insurance, all of their employees working on or about the Property/Right-of-Way, and
Licensee shall defend, protect and hold harmless NCTD, its Board of Directors, officers,
employees, agents and volunteers from and against all claims, suits, and actions arising from any
failure of the Licensee or any of Licensee’s contractors or assigns to maintain such insurance.
A. Licensee shall provide employer’s liability insurance in the amount of one million ($1,000,000) per
occurrence for bodily injury and disease.
B. Licensee shall provide NCTD with a certificate of Workers’ Compensation and Employer’s
liability insurance coverage.
C. Such insurance may include an insurer’s waiver of subrogation in favor of NCTD and will be in a
form and with insurance companies reasonably satisfactory to NCTD.
5. OPTIONAL (As required by Risk Dept.) Property Insurance: Licensee shall maintain property
insurance covering the full replacement cost of Licensee's personal property, fixtures, equipment,
and improvements against the hazards of fire, extended coverage/vandalism and malicious
mischief, flood and other property-related losses. Deductible limits should be no more than five
thousand dollars ($5,000). However, NCTD reserves the right to modify deductible limits.
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6. All policies required shall be issued by insurance companies who are rated not less than "A VII" by
the latest A. M. Best Company Key Rating Guide, who are authorized to transact business in
California.
7. NCTD makes no representation that the limits or forms of coverage of insurance specified in this
section are adequate to cover Licensee's property or obligations under this License. NCTD
reserves the right to raise or lower limit requirements at the time of request, based upon the scope
of work.
8. Prior to execution of this License, Licensee shall file with NCTD a certificate of insurance signed by
the insurer’s representative. Such evidence shall also include confirmation that coverage includes
or has been modified to include required provisions as set forth herein. Licensee shall upon the
reasonable demand of NCTD, deliver to NCTD such policy or policies of insurance. Each
insurance policy required by this clause shall state or be endorsed to state that coverage shall not
be amended or cancelled, except after thirty (30) days prior notice by U.S. mail has been given to
NCTD.
9. If any insurance coverage is canceled or reduced, Licensee shall, within ten (10) days after receipt
of written notice of such cancellation or reduction of coverage, file with NCTD a certificate showing
that the required insurance has been reinstated or provided through another insurance company or
companies, and said policy shall be submitted for approval as herein provided. At least fifteen (15)
days prior to the expiration of any such policy, a certificate, showing that the insurance coverage
has been renewed or extended, shall be filed with NCTD.
10. Every contractor or subcontractor of Licensee entering upon, using or performing any work upon
the Right-of-Way/Property by or on behalf of Licensee shall provide evidence of insurance required
herein prior to entering upon the Right-of-Way/Property.
11. NCTD reserves the right to increase the limits for the insurance required herein to amounts
recommended by NCTD’s insurance risk manager or insurance representative.
12. Notwithstanding any other provision of this License, Licensee may self-insure for any risk set forth
in this section in the manner and to the extent that Licensee self-insures for similar risks with
respect to its operations, equipment and property. The manner in which such self-insured is
provided and the extent of such self-insurance shall be set forth in a letter of self-insurance,
delivered to NCTD and signed by an authorized representative of Licensee, which fully describes
the self-insurance program and how the program covers the risks set forth herein. Insurance
provided by a joint powers authority or insurance pool shall be considered self-insurance for the
purpose of this paragraph. If, at any time during the term of this License, Licensee elects not to self-
insure, Licensee shall comply with all applicable provisions herein to the extent Licensee does not
so self-insure. NCTD reserves the right to request Licensee financial statements for review prior to
accepting self-insurance limits.
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