License for Encroachmentsalongthe Baysiderailcorridor
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MTS Doc. No. L4587.Q-09 ADM 160.2 JOINT LICENSE FOR ENCROACHMENTS ALONG THEI,.BAYSIDE RAIL CORRIDOR THIS JOINT LICENSE (‘License”), made this / day of -.Jq’v6*’/’ 200 /(the “COMMENCEMENT DATE”), between the San Diego & Arizona Eastern Railway Company (SD&AE), a Nevada, nonprofit corporation and wholly owned subsidiary of the San Diego Metropolitan Transit System (hereinafter collectively referred to as “MTS”) and the Redevelopment Agency of the City of San Diego (hereinafter referred to as “Agency”). RECITALS A. MTS has constructed certain improvements associated with MTS Bayside Trolley line on Agency property (‘MTS Encroachments”). B. Agency has constructed certain improvements associated with Agency’s Martin Luther King Jr., Promenade project on MTS property, including the MTS-owned easement area for the transformers at the Children’s Museum (“Agency Encroachments”). C. The nature and location of the MTS Encroachments and Agency Encroachments are generally shown on that certain “Encroachment Map, Martin Luther King, Jr. Promenade from G Street gth to Avenue” (“Encroachment Map”), prepared by Berggren & Associates and dated February 11, 2002, which Map is incorporated herein by reference. The nature of the Agency Encroachment into the MTS transformer easement is shown on Exhibit “A” attached hereto and incorporated herein by reference. D. It is the parties’ intention to memorialize the terms and conditions for the continued existence of the Agency and MTS Encroachments on the respective properties of the parties, including but not limited to the terms for maintenance and relocation thereof, in this License. NOW, THEREFORE, the parties covenant and agree as follows: 1. Subject to the terms and conditions hereinafter set forth, MTS licenses Agency to maintain the following improvements (hereinafter Agency Improvements) across, under, over, or along the property of MTS: a. Plant materials; trees (including Palm Trees w/tree grates), shrubs, grass and other ground cover. b. Irrigation systems, including water meters, service conduits, electrical conductors, meter pedestals, controller boxes and controllers, back flow preventors, stainless steel cages, valves, sprinkler heads, quick couplers and all other items necessary for an optimal operating irrigation system. c. Vinyl covered chain link fence and wrought iron fence. d. Area storm drains and storm drain pipes. e. Pull boxes for electrical and irrigation purposes. f. Flood lights on catenary poles along with all conduits, conductors, pull boxes and all other items necessary for a proper flood light system. g. Metal edging along planted areas. h. Concrete retaining walls. Pipes and iron sleeves. j. Metal bollards with chains. k. A portion of the special fountain at Gasiamp Park, including a small above ground structure housing a trash dumpster, electrical panel and air compressor, and all other items for optimal function of the fountain. Temporary screening on the inside of the fence surrounding the MTS transformer as shown on Exhibit “A”. The screening shall be removed when vines planted on the outside of the fence are mature enough to provide screening of the transformer, or three years from the Commencement Date of this Agreement, whichever occurs first. Agency shall maintain the vines as required by Paragraph 3. The general location of the Agency Improvements identified above, except the screening, is shown on the Encroachment Map. 2. Subject to the terms and conditions hereinafter set forth, Agency licenses to MTS the right to maintain the following improvements (hereinafter MTS Improvements) across, under, over, or along the property of Agency of the type described below: a. Electrical underground conduit and conductors. b. Electrical vaults, pull boxes and panels. c. Electrical meter boxes/pedestals with addresses of 301 Harbor Drive, 410 Front Street and 497, 499 and 503 Market Street d. Various cabinets/boxes, conduits, conductors, switches and other electrical items. e. Traffic signal boxes. f. Catenary poles. g. Transformer control posts. The general location of the MTS Improvements identified above is shown on the Encroachment Map. 3. Agency shall, at its own cost and subject to the supervision and control of MTS’s appointed representative, maintain the Agency Improvements in such a manner using such material that they will not at any time be a source of danger or interference with the present or future operation of any facilities owned and/or operated by MTS, or any of its subsidiaries or agents, on the MTS property. Any damage to such MTS facilities, including but not limited to railroad tracks, track structure or ballast, caused by the existence or maintenance of the Agency Improvements shall be repaired by MTS at Agency’s expense. 4. MTS shall, at its own cost and subject to the supervision and control of the Agency’s appointed representative, maintain the MTS Improvements in such a manner using such material that they will not at any time be a source of danger or interference with the present or future operation of any facilities owned and/or operated by Agency on the Agency property. Any damage to such Agency facilities caused by the existence or maintenance of the MTS Improvements shall be repaired by Agency at MTS’s expense. 5. The parties shall reimburse each other for all costs and expenses incurred during the maintenance or reconstruction of the Agency or MTS Improvements on Agency or MTS Property, as the case may be, including, but not limited to, plan review and approval, ROE 2 L4587.0-09 permit processing, the expense of furnishing inspectors andlor flagmen, and restoration of Agency or MTS property to its pre-construction condition. 6. insurance. The Agency and MTS shall each maintain the following insurance (a) General Liability (i) Self-insurance and/or an excess policy for general liability coverage of $5 million. The coverage described above shall cover bodily injury (including death) and property damage liability, owned and non-owned equipment, and blanket contractual liability. The policies shall not have endorsement limitations relating to operations on or near railroad property. (ii) The Agency’s policies shall name in the endorsement San Diego Metropolitan Transit System (MTS), San Diego Trolley, Inc. (SDTI), San Diego and Arizona Eastern Railway (SD&AE), San Diego and Imperial Valley Railroad (SD&IV), San Diego Transit Corporation (SDTC), and their directors, officers, agents, and employees as additional insureds as their interests may appear. (iii) MTS’s policies shall name the Centre City Development Corporation (CCDC) and the Redevelopment Agency of the City of San Diego (Agency), their directors, officers, agents, and employees as additional insureds as their interests may appear. (b) Automobile Liability (I) Self-insurance and/or an excess policy for automobile liability coverage up to $2 miNion. 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 coverage shall cover all owned, non-owned and hired automobiles. (c) Workers Compensation. (i). The Agency and MTS shall cover or insure under the applicable laws relating to workers’ compensation insurance, all of their employees working on or about the Right-of-Way, all in accordance with the “Workers’ Compensation and Insurance Act,” Division IV of the Labor Code of the State of California and any Acts amendatory thereof. Agency and MTS shall provide employers’ liability insurance in the amount of not less than two million dollars per accident for bodily injury and disease. By its signature hereunder, the Agency and MTS certify that they are aware of the provisions of Section 3700 of the California Labor Code which requires every employer to be insured against liability for workers’ compensation or to undertake self-insurance in accordance with the provisions of that code, and will comply with such provisions in connection with any work performed on any area covered by this License. Any persons providing services with or on behalf of the Agency or MTS shall be covered by workers’ compensation (or qualified self-insurance.) Agency and MTS each waive any rights of subrogation against one 3 L4587.0-09 another or any of their subsidiaries, and the policy form must permit and accept such waiver. (d) Railroad Protective Insurance. Agency shall remove any exclusions 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 or purchase a separate Railroad Protective Liability policy. (e) For any claims arising out of or connected with this License the negligent party’s insurance shall be primary insurance to the other party whose insurance shall not contribute to it. All policies and coverages shall contain a provision for 30 days written notice by the Insurer(s) to the Agency or the MTS Contracts Specialist of any cancellation or material reduction of coverage. A ten- day notice is required for non-payment of premium. (f) The Agency and MTS shall each insure that every contractor or subcontractor retained to perform any construction or maintenance of the Agency Encroachments or MTS Encroachments, who enters upon, uses, or performs any work upon the ROW by or on behalf of CITY shall provide evidence of insurance as follows: (1) Commercial General Liability. At all times during this contract and, with respect to Products