HomeMy WebLinkAboutNorth Coast Railroad Authority (NCRA) 2018-03-01J--PY File No. NCRA-110-1001
City of Ukiah
Milepost 1 10.69, 110.87, & 111.14, Mendocino County
License Agreement
This License Agreement ("Agreement") by and between North Coast Railroad Authority
(NCRA), a public authority established pursuant to the North Coast Railroad Authority
Act (Gov Code §93000 et seq.) (herein referred to as "Licensor") and City of Ukiah, (a
Municipal Corporation); herein referred to as "Licensee") together known as the
"Parties".
In consideration of the mutual promises contained in this Agreement, the Parties agree as
follows:
1. GRANT OF LICENSE; DESCRIPTION OF PROPERTY
Licensor grants to Licensee a license to utilize property of Licensor as depicted in Exhibit
"A" and otherwise described as Three Water Pipe Crossings: One (1) sub grade 2"
water pipe within a 10' x 80' Corridor at Milepost 111.14+/-, One (1) sub -grade 8"
water pipe within a 10' x 80' Corridor at Milepost 110.87+/-, and One (1) sub grade 2"
water pipe within a 10' x 80' Corridor at Milepost 110.69+/-.
2. USE OF PROPERTY; TERM
The above described Property may be entered upon and maintained by Licensee solely
during the period beginning March 1, 2018 (the Effective Date) and continuing for a
term of ten (10) years, unless sooner terminated as provided herein ("Initial Term").
Subject to the terms and conditions set forth herein, the License shall automatically renew
for additional ten (10) year terms until terminated as provided herein ("Renewal Term").
However, the tern will be deemed reduced from the otherwise remaining term at the
annual anniversary date of this agreement, to one additional year if the crossing is located
on any portion of the right of way that as of the annual anniversary date has been
approved by the Federal Railroad Administration for the resumption of freight operations.
At any time during the "Initial Term," or a "Renewal Term," either party may give notice
in the manner provide herein to the other party that the term shall not automatically
renew on the next renewal date. Time is expressly declared to be of the essence of this
provision.
3. CONSIDERATION
As consideration for this Agreement, Licensee agrees to pay Licensor the sum of
$25,000.00 (Twenty -Five Thousand dollars) during the initial term of this Agreement,
payable on the Effective Date. Beginning one year following the Initial Term, and
continuing thereafter on each ten year anniversary of the Effective Date during the
License Term, as it may be extended ("Anniversary Date"), Rent shall be evaluated and
assessed at either the current market value or increased by Three Percent (3%), whichever
is greater in each 10 year period. Conditional rent abatement for future license renewal
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File No. NCRA-110-1001
City of Ukiah
Milepost 110.69, 110.87, & 111.14, Mendocino County
a. Commercial General Liability
b. Comprehensive Auto Liability
c. Worker's Compensation
d. Employer's Liability
e. Any other coverage required by NCRA
6. ENVIRONMENTAL PROVISIONS
$1,000,000.00 per occurrence
$2,000,000.00 general aggregate
$1,000,000.00 combined single limit
$500,000.00 each employee
$500,000.00 each accident
$1,000,000.00 policy limit
A.M. best rating of A-, Class
IX or better
A. Definitions. As used in this Section, the following terms have the
following definitions:
"Agencies" means any federal, state, or local governmental authorities, agencies,
or other administrative bodies with jurisdiction over Licensee or the Premises.
"Environmental Laws" means any federal, state, or local environmental, health, or
safety-related laws, regulations, standards, court decisions, ordinances, rules, codes,
orders, decrees, directives, guidelines, permits, or permit conditions, currently existing
and as amended, enacted, issued, or adopted in the future that are or become applicable to
Licensee or the Premises, including, but not necessarily limited to the Consent Decree in
Hight v. North Coast Railroad Authority, Mendocino County Superior Court, Case No.
80240, a true and correct copy of which is posted at NCRA's website,
http://www.northcoastrailroad.org.
"Existing Environmental Conditions" means the conditions disclosed in the report
entitled Phase II and Phase 111 Program Findings, Northwestern Pacific Railroad,
Novato to Willits, dated March 1996, prepared for Licensor by Geomatrix Consultants, a
true copy of which is available for inspection at the NCRA office, or such other
conditions as may be identified in an addendum to this agreement executed by both
parties.
"Hazardous Material" means any chemical, substance, material, controlled
substance, object, condition, waste, living organism, or combination that is or may be
hazardous to human health or to the safety of the environment due to its radioactivity,
flammability, corrosivity, reactivity, explosivity, toxicity, carcinogenicity, mutagenicity,
phytotoxicity, infectiousness, or other harmful or potentially harmful properties or
effects, including, without limitation, petroleum and petroleum products, asbestos, radon,
polychlorinated biphenyls (PCBs) and all of those chemicals, substances, materials,
controlled substances, objects, conditions, wastes, living organisms, or combinations that
are now or become in the future listed, defined, or regulated in any manner by any
Environmental Law based upon, directly or indirectly, their properties or effects.
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File No. NCRA-110-1001
City of Ukiah
Milepost 110.69, 110.87, & 111.14, Mendocino County
E. Licensor's Right of Entry and Testing.
Licensor and Licensor's representatives have the right, but not the obligation, at
any reasonable time to enter onto and to inspect the Premises and to conduct reasonable
testing, monitoring, sampling, digging, drilling, and analysis to determine if Hazardous
Materials are present on, under, or about the Premises and to review and copy any
documents, materials, data, inventories, financial data, or notices or correspondence to or
from private parties or governmental authorities (collectively, "Inspection"). If the
Investigation indicates the presence of any environmental condition that occurred during
the Term as a result of Licensee's or Licensee's Parties' activities, or failure to act where
Licensee had a duty to act, in connection with the Premises, Licensee will reimburse
Licensor for the cost of conducting the tests.
F. Environmental Assessment.
Licensor may require Licensee to retain a duly licensed environmental consultant
acceptable to Licensor that will perform an environmental compliance audit of the
Premises and Licensee's and Licensee's Parties' business activities and compliance with
the provisions of this Agreement. Licensor may require Licensee to cause the
environmental compliance audit to be conducted on an annual basis, the reasonable cost
of which will be the sole responsibility of Licensee. If the results of the environmental
compliance audit indicate that Licensee is or may be in violation of Section 6, Licensee
will be responsible for the cost of any additional testing required by Licensor. Licensee
must promptly provide a copy of the report from the consultant to Licensor upon receipt,
and upon request must promptly provide to Licensor a copy of all data, documents, and
other information prepared or gathered in connection with the report. Licensee
acknowledges that Licensee has been provided an adequate opportunity to conduct
Licensee's own environmental investigation of the Premises with independent
environmental experts and consultants.
G. Notification.
i. Licensee must give immediate written notice to Licensor of:
(a) any enforcement, remediation, or other regulatory action or
order, taken or threatened, by any Agency regarding, or in
connection with, the presence, release, or threat of releases
of any Hazardous Material on, under, about, or from the
Premises, or any tanks on the Premises, or otherwise
resulting from Licensee's use of the Premises;
(a) all demands or claims made or threatened by any third
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File No. NCRA-110-1001
City of Ukiah
Milepost 110.69, 110.87, & 111.14, Mendocino County
has the right, but not the obligation, to assume control of any required remediation on the
Premises at Licensee's expense if Licensee fails to notify Licensor and obtain Licensor's
approvals as required. Within thirty (30) days after Licensee's completion of any
remediation of the Premises, Licensee must deliver to Licensor a letter from the
applicable Agency stating that the remediation was undertaken in accordance with all
applicable Environmental Laws and that any residual contamination remaining after the
remediation does not pose a threat to human health or the environment.
ii. If Licensee or Licensee's Parties have caused or permitted a release
of Hazardous Materials that results in or threatens to result in Hazardous Materials
becoming present on, under, or about the Premises, threatens public health or safety or
the environment, or is in noncompliance with any applicable Environmental Laws,
Licensor may demand that Licensee promptly take action. If Licensee does not respond
within thirty (30) days (unless there is an emergency, in which case Licensee must
respond as soon as practicable, but not less than three (3) days), Licensor has the right,
but not the obligation, to enter onto the Premises and take all actions reasonably
necessary to investigate and fully remediate the release of noncompliance at Licensee's
sole expense, which sums will be immediately due and payable upon receipt of an
invoice and will constitute additional rent under this Agreement.
7. SURRENDER OF THE PREMISES; HOLDING OVER
A. Upon termination of this License, Licensee shall leave the Premises in a
neat and clean condition satisfactory to Licensor and free of all personal property of
Licensee. All repairs, Alterations and/or other improvements made by Licensee shall
become the property of Licensor, provided that Licensor may, by written notice given to
Licensee on not less than (10) days prior to the expiration of the Agreement, require
Licensee to remove any such Alterations and improvements from the Premises and to
restore the Premises to their original condition (normal wear and tear excepted) prior to
termination of this Agreement. If Licensee fails to do so, Licensor may perform such
removal and restoration work in which case Licensee shall pay Licensor within one
hundred and eighty (180) days after demand therefore an amount equal to the rent (as in
effect immediately before termination) for the period during which such removal is
accomplished to compensate Licensor for the loss of rent to Licensor resulting from the
unavailability of the Premises for licensing to another Licensee during such time and (2)
the cost of removal of such improvements. Licensor shall use reasonable diligence on the
removal of such improvements.
B. If Licensee, without Licensor's written consent, remains in possession of
all or part of the Premises after termination or expiration of this Agreement, such
occupancy shall be construed to be a tenancy from month-to-month, subject to the terms
and conditions of this Agreement, except that the Base Rent shall automatically increase
to 200% of the Base Rent in effect immediately prior to such termination or expiration in
addition to such other damages that Licensor may sustain.
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File No. NCRA-110-1001
City of Ukiah
Milepost 110.69, 110.87, & 111.14, Mendocino County
This License may be terminated by notice from Licensor to Licensee in the event that
either the Federal Railroad Administration or the California Public Utilities Commission
orders the crossing closed for any reason. In such event Licensor may appeal such order,
at its own expense, and the Licensor will not challenge the standing of Licensee to do so.
In the event that Licensee is in breach of this License, the Licensor may terminate this
license upon twenty (20) days' notice to Licensee and opportunity to cure any violation
of this License.
12. PARAGRAPH HEADINGS
Paragraph headings are included for the convenience of the parties and are not intended
to define or limit the scope of this Agreement.
13. PREVIOUS AGREEMENTS
Any and all existing statements or agreements, whether oral or written, or renewals
thereof, between the parties hereto, covering the same subject matter are hereby cancelled
and superseded by the terms of this Agreement, and such prior agreements, statements or
understandings shall have no further force or effect.
License
Sig
Pri
Tit e:
Date:
a 2-7-1
North Coast Railroad Authority
By:
Print:
Title:
Date:
Approved as to Form
NCRA General Legal Counsel
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File No. NCRA-110-1001
City of Ukiah
Milepost 110.69, 110.87, & 111.14, Mendocino County
EXHIBIT A
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