HomeMy WebLinkAboutNorth Coast Railroad Authority (NCRA) 2014-06-18; Amendment 2 2020-05-17COU No. 1314-238-A2
AMENDED LICENSE AGREEMENT
THIS AMENDED LICENSE AGREEMENT ("Agreement"), made as of June 18, 2014, is
amended as of I7day of May, 2020, by and between the North Coast Railroad Authority, a
public agency formed pursuant to Government Code Section 93000 et seq. ("NCRA") and the
City of Ukiah, a municipal public entity ("City").
RECITALS
A. NCRA or its successor ("NCRA") is the property owner or easement holder of the
railway right-of-way corridor ("Rail Corridor") located in Mendocino County and
under contract for operation with the Northwestern Pacific Railroad Company
("NWP").
B. In conjunction with NWP, NCRA adopted a Policy and Procedures Manual for
the design, construction, safety, operations, and maintenance of shared use public
trails located within the Rail Corridor ("Rails -with -Trails").
C. The City seeks to develop a Rails -with -Trails path within the Rail Corridor
located in the City of Ukiah jurisdictional area consistent with said Rails -with -
Trails Policy and Procedures Manual.
D. NCRA desires to issue a license to the City to use the Rail Corridor for the Ukiah
NWP Rail Trail Project, and the City desires to accept such license, on the terms
and conditions set forth in this License Agreement.
NOW THEREFORE, in consideration of the mutual covenants, conditions and
agreements recited herein and made a material part hereof, the NCRA and City
agree as follows:
1. Definitions.
2. Description of License Property. The property subject to this Agreement (the "License
Property") is defined as that specific section of the Rail Corridor within the Ukiah City
Limits beginning in the south at Norgard Lane, at or near Station 5814+50 and
terminating in the north at Brush Street, at or near Station 5968+50.
3. Use. NCRA hereby grants to the City a non-exclusive license to access and use the
License Property to construct, install, maintain, reconstruct, remove, repair and manage a
multi -modal public path, for shared use by, including but not limited to, bicyclists,
pedestrians, wheelchairs, joggers, and other non -motorized uses. Motorized vehicles shall
be permitted access and use as needed by the City, its agents and contractors, for
construction and maintenance purposes, and by emergency response personnel. On signs
within the project area referencing the trail by name, the City shall use the name: "The
1
Great Redwood Trail". All use shall be consistent with the NCRA Rails -with -Trails
Policy and Procedure Manual, adopted May 13, 2009, amended August 12, 2009, and all
future amendments thereto.
4. Term. The term of this Agreement shall be twenty-five (25) years (the "Term")
commencing on August 1, 2014 (the "Commencement Date"), and, unless sooner
terminated or extended as herein provided, shall terminate on August 1, 2039.
5. Conditions Precedent. This Agreement shall be null and void in the event the City fails to
obtain funding and all regulatory permits required for trail construction.
6. License Fee. City shall maintain the trail which will provide maintenance to the NCRA
right -of —way in lieu of a one-time license payment. The City shall track the annual
maintenance of the trail / right-of-way. In lieu of either a one-time or annual license fee
payment, the City shall provide maintenance to completed trail segments as follows: a.)
maintain drainage structures between the center line of the railroad main line and the
western edge of the main line right-of-way; b.) provide all vegetation management,
including tree trimming and removal, between the center line of the railroad main line
and the western edge of the main line right-of-way; c.) additionally, north of Perkins
Street and south of Clara Avenue, provide vegetation management between the western
edge of the main line right-of-way and the easterly line of Mason Street; d.) although not
required, the City, at its sole discretion and expense, may perform such additional
vegetation management as it deems appropriate within the License Property.
7. Trail Construction.
(a) Trail Construction, Timing. The City may construct trail improvements in the
License Property in segments as funding allows. Individual trail segments shall not be
open for public use until completion of the trail improvement in said segment. Where
required by permitting or other regulatory authorities, NCRA reasonably agrees to
execute and deliver applications for permits, licenses or other authorizations relating to
the Rail Corridor. Trail segments shall be constructed in accordance with approved
Construction Plans, and all applicable laws, rules, regulations and permits. The City shall
provide fourteen (14) days advance written notice to NCRA prior to beginning
construction on any trail segment. The City shall provide fourteen (14) days advance
written notice to the NCRA prior to opening any trail segment for public use.
(b) Construction Plan Approval. The City shall submit detailed construction ready
plans and specifications ("Construction Plans") to the NCRA for review and approval
prior to constructing any trail segment. Within one hundred twenty (120) days of receipt,
the NCRA shall provide comments and input on the Construction Plans to the City.
Failure to provide comments to the City within this time period shall be deemed approval
by the NCRA of the Construction Plans.
2
(c) Construction Plan Contents. Construction Plans shall include, but not be limited
to, specifications for temporary construction fencing, permanent landscaping, fencing or
other trail demarcation and setbacks, and signage. Construction Plans shall comply with
all standards and conditions set forth in the Rails -with -Trails Policy and Procedures
Manual.
(d) Removal of Sidings. City shall co-ordinate with NWP Co. the removal of the
freight sidings located north of Perkins Street and west of the main line with NWP Co to
bear the cost of removal, retain salvageable materials for future railroad use, and dispose
of unusable material.
8. Ongoing Maintenance.
(a) The City shall, during the Term, at its own cost and expense and without any cost
or expense to NCRA:
(i) Keep and maintain all trail improvements (subject to City's right to remove) in
good and neat order and repair and shall allow no nuisances to exist or be maintained
therein. NCRA shall not be obligated to make any trail repairs of any kind; and
(ii) Comply with and abide by all applicable federal, state, and local laws and regulations
affecting the License Property.
9. Consent to Establish City Park.
(a) NCRA authorizes the City to establish as a City Park under Ukiah City Code
("UCC") Section 1965 the License Property as defined herein.
(b) NCRA authorizes the City to allow for specified uses of park facilities within the
License Property that are consistent with the "Rails -with -Trails Policy and Procedures
Manual" as defined in the License Agreement and are enhancements to uses authorized in
the License Agreement, such as, but not limited to, adjacent landscaping and community
gardens ("Enhancements").
(c) The park designation in UCC § 1965 may include a provision specifying that
portions of the License Property not used for a multi -modal public path or Enhancements
are closed to public use and shall not be subject to Ukiah City Code Sections 1966.
NCRA authorizes the City to apply rules and regulations other than those prescribed in
UCC Division 1, Chapter 12, if such rules are adopted by resolution of the Ukiah City
Council and are otherwise permitted by the terms of this Agreement.
(d) Nothing in this Section 9 authorizes the City to dedicate the Licensed Property as
park land, nor shall this Section 9 be construed as such a dedication. No designation of a
3
City Park pursuant to the authority of this Section 9 shall survive the termination of this
Agreement.
(e) NCRA may at any time, upon thirty (30) days' written notice to the City, revoke
its consent to the use of the License Property as a City Park. Upon such notice of
revocation of consent, all other terms of this Agreement shall remain in full force and
effect.
10. Trail Removal, Modification. The City shall reasonably remove, relocate or modify any
trail improvement or portion thereof, at its own expense, in order to accommodate
additional track or tracks or other railroad related facilities in the Rail Corridor.
11. Insurance. The City shall maintain general liability coverage in the amount of no less
than $5,000,000 per occurrence and aggregate. Insurance shall be placed with a carrier
having a current A.M. Best rating of at least A:VII or with the Redwood Empire
Municipal Insurance Fund ("REMIF"). Evidence of coverage shall be provided to NCRA
on request.
12. Indemnification. To the maximum extent allowed by law, the City agrees to indemnify,
defend and hold harmless NCRA, including its officers, employees, operators, agents,
contractors, successors and assigns, from and against all loss, liability (including liability
with respect to death, injury and personal and property damage), claims, demands, suits,
liens, claims of lien, damages, costs and expenses:
(a) arising out of the use or misuse of the License Property by members of the public,
including claims which arise from utilization of the NCRA right-of-way adjacent to the
License Property by users of the License Property;
(b) arising from the construction of improvements within or the maintenance of those
improvements by the City or its contractors; or
(3) any negligent or wrongful act or omission by the City in constructing or maintaining
improvements within the Licensed Premises.
Such indemnity shall apply notwithstanding NCRA's active or passive negligence, and
shall be deemed to apply to any and all losses resulting from the City's negligent or
wrongful acts or omissions. The City is not required to indemnify NCRA for claims or
damages caused by the willful misconduct or the sole negligence of NCRA or its officers,
contractors or employees. This provision shall survive any termination of the License for
actions or inactions that may arise during the time this License is in effect.
13. Assumption of Risk and Waiver. To the maximum extent allowed by law, the City
assumes any and all risk of loss, damage or injury. The City's assumption of risk shall
include loss or damage to the City, its officers, employees, agents, contractors, assigns
and successors. The City hereby waives all claims and demands against NCRA for such
4
Toss, damage or injury, and waives the benefit of California Civil Code Section 1542,
which provides as follows:
A general release does not extend to claims which the creditor does not know or
suspect to exist in his favor at the time of executing the release, which if known to
him must have materially affected his settlement with the debtor.
14. Abandonment. In the event of action by the City Council for the City of Ukiah to
abandon the use of the License Property, or any part thereof, this Agreement shall
terminate to the extent of the portion so abandoned or discontinued.
15. Surrender. Upon termination of this Agreement, including but not limited to a termination
resulting from expiration of the license term, breach, or abandonment of all or a portion
of the trail improvements, the City may remove, at its own cost and expense, any and all
trail improvements. Upon removal of any trail improvements, the City may, with the
concurrence of NCRA, (i) reasonably restore the affected portion of the License Property
to a state or condition as it existed prior to the construction of trail improvements, (ii)
leave all or a portion of the trail improvements in place, or (iii) replace the trail
improvements with comparable improvements approved by NCRA.
16. Breach. In the event the City breaches, or fails to keep, observe or perform any covenant,
term or condition of this Agreement, in addition to all other rights and remedies of NCRA
provided hereunder or by law, after written notice or demand, and the City's failure to
cure the breach within thirty (30) days of notice, or fewer days in the event the breach
impacts public health, welfare or safety, unless the breach cannot be cured within that
time in the exercise of reasonable diligence, in that event the City must commence to cure
the breach within 30 days and complete the cure as soon as reasonably practical, NCRA
may terminate this Agreement and thereafter recover possession of the License Property
by lawful means.
17. Waiver. No waiver of any default under this Agreement shall constitute or operate as a
waiver of any subsequent default hereunder, and no delay, failure or omission in
exercising or enforcing any right, privilege, or option under this Agreement shall
constitute a waiver, abandonment or relinquishment thereof or prohibit or prevent any
election under or enforcement or exercise of any right, privilege, or option hereunder.
18. Notices. Except as otherwise provided hereunder; any notice or communication to
NCRA, or the City shall be in writing and be mailed by postage prepaid. Notices or
communications shall be addressed to the parties at the following addresses, which may
be changed at any time by notice to the other party:
5
To NCRA: To City:
Executive Director Director of Public Works
North Coast Railroad Authority City of Ukiah
419 Talmage Road, Ste M 300 Seminary Avenue
Ukiah, CA 95482 Ukiah, CA 95482
Any notice mailed in the manner above set forth shall be deemed to have been received unless
returned to the sender by the post office. Notice may be sent by email when simultaneously
provided using one of the methods set forth above.
19. Severability. In case any one or more of the provisions contained in this Lease shall for
any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect any other provisions of this Lease, but this
Lease shall be construed as if such invalid, illegal, or unenforceable provisions had not
been contained herein.
20. Time of the Essence. Time is of the essence of each and all of the agreements, covenants,
and conditions of this Lease.
21. Consents. Whenever in this Lease the consent or approval of either NCRA or City is
required or permitted, the party requested to give such consent or approval will act
promptly and will not unreasonably withhold its consent or approval.
22. Attorneys' Fees. In the event of any action or proceeding at law or in equity between
NCRA and City to enforce any provision of this Lease or to protect or establish any right
or remedy of either party hereunder, each party shall pay its own costs and expenses,
including attorney's fees.
23. Integration. This instrument constitutes the entire agreement between NCRA and City
with respect to the subject matter hereof and supersedes all prior offers and negotiations,
oral or written. This Lease may not be amended or modified in any respect whatsoever
except by an instrument in writing signed by NCRA and City.
24. Amendments. This Lease may be modified only in writing and only if signed by the
parties at the time of the modification.
25. Assignment and Subletting. City may assign this Agreement, or any interest herein, at
any time provided that, (i) NCRA has consented to the assignment, (ii) the assignment
shall be in writing, duly executed and acknowledged by City and the assignee, in form
satisfactory to NCRA, providing that the assignee assumes and agrees to perform and
6
observe all the agreements, covenants and conditions of this Lease on the part of City to
be performed and observed, and (iii) an executed original of such assignment shall be
delivered to NCRA.
26. Governing Law. This Agreement shall be governed by and construed in accordance with
the laws of the State of California.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written
above.
NORTH COAST RAILROAD
AUTHORITY:�'
By:/. V]Wu By:
CITY OF UKIAH:
Name: in he'll c975J / 1 E'N
DtjtQCTh- --
It's:
Date: %7 / 24_21,1,2) 0
7
Name: Sage Sangiacomo, City Manager
It's: YY\c raacr
Date: 05/29/2020