HomeMy WebLinkAboutSan Joaquin Valley Railroad Occupancy License Agmt MP 20318a) ,.a t)
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Form PPL-CLX-04-2014
Page I of 10 Permit No. SJVR 140601
This Agreement ("Agreement") made ni, à* duy o
Railroad ("LICENSOR"), whose address is C/O Genesee
South, Suite 160, Jacksonville, FL 32224, and City of Fresno - Waste Water Management Division (,,LICENSEE,,),whose address is 5607 West Jensen Ave., Fresno, CA 93706_945g.
WHEREAS' LICENSEE has submitted a written request or application to LICENSOR requesting permission tooccupy LICENSOR'S properfy located at or near the location specified in Sèction I below; and
WHEREAS' LICENSOR is willing to grant to LICENSEE the limited right to occupy LICENSOR,S property for thelimited purpose described herein.
Now THEREFORE, in consideration of these promises, the Agreement herein, and other good and valuableconsideration the receipt and sufficiency of which are hereby acknowledged, tñe parties agree as follows:
Section l. LOCATION/DESCRIPT|ON.
1'l LICENSOR hereby conveys to LICENSEE a license ( "occupancy") to operate upon, along or across LICENS9R'Sproperly as indicated below:
A. ( )above ground (x)belowground
B'(x)waterpipeline( )sewerpipeline( )stormwaterpipeline( )cabletvwireline( )fiberopticwireline
( ) communications wireline ( ) power wireline
located at or near Mile Post 203.18, west side subdivision at or near Fresno, county of Fresno, State of cA. Nothing hereincontained shall be construed as conferring any properly right on LICENSEE.
1.2 Said Occupancy to be located and described as follows:
underground water pipeline crossing for recycled water 65" casing 48" carrier including necessary appuftenances,structures and other related fixtures, equipment, marker posts or electric power (,,LICENSEE'S Facilities"¡, pfu.Ëa as shownon Exhibit A attached hereto and made a part hereof. I ICENSEE'S Facilities are subordinated to all matters ofrecord' LICENSOR reserYes the right to use the area three (3) feet below ground level and to enter LICENSEE,SFacilities for construction and maintenance of LICENSOR,s property.
1'3 THE LTNDERSIGNED AGREES that the continuation of the occupancy and use herein shall be subject to the conditionsspecified herein.
Section 2. USE/PURPOSE/OWNERSHIP.
2'l LICENSEE'S Facilities shall be installed to the satisfaction and approval of LICENSoR'S Engineer and all costs ofLICENSOR'S Engineer and other tech¡icians or professional consultants ã, ,ouy be required from time to time shall be borneby LICENSEE.
2.2 LICENSEE hereby agrees to reimburse LICENSOR for any and all expenses incur or be subjected to, orin consequence of, the planning, negotiation, ìnstallation, consfiuction, locafion, on, relocation, operation orrenewal of said Facilities, within thirty (30) days after receipt of LICENSOR'S inv
Section 3. FEE.
Said Agreement and Occupancy is granted contingent upon of $1460. LICENSEEshall also submit a one-time agreement processing fee of $ d a contractor right ofentry fee of $1500, which shall be covered by a separate agree OF ENTRY LICENSE
Form PPL-CLX-04-2014
Page 2 of 10
Permit No. SJ!'R 140601
AGREEMENT. LICENSOR reseryes the right to adjust the annual fee on each anniversary date of this Agreement, or at such
other times as conditions waffant. Billing or acceptance by LICENSOR of any annual fee shall not imply a definite term or
otherwise restrict either party from canceling this Agreement as herein provided.
Section 4. TERM/TERMINATION.
This Agreement shall continue in force indef,rnitely from and after the date hereof, subject, however, to the right of either party
to terminate this Agreement as to the Occupancy or LICENSEE'S Facilities, or any part of LICENSEE'S Facilities, at any time,
upon giving the other party thirty (30) days' notice in wliting of its desire to terminate this Agreernent, and indicating in said
notice the extent of said facilities and facilities to which such termination shall apply. Notwithstanding the foregoing, in the
event that (i) the use of the Occupancy as set forth above in Sections I arÃ2 is materially changed, (iÐ LICENSEE'S Facilities
are removed, or (iii) LICENSEE defaults on a material obligation hereunder and such default is not cured within 30 days after
receipt of written notice from LICENSOR describing such default (or such longer cure period as determined in LICENSOR'S
sole discretion), this Agreement shall automatically tenninate. When this Agreement shall be terminated as to LICENSEE'S
Facilities, or as to any part thereof, LICENSEE within thirty (30) days' after the expiration of the time stated in said termination
notice, aglees at LICENSEE'S own risk and sole expense to remove LICENSEE'S Facilities from the property of LICENSOR,
or such portion thereof as LICENSOR shall require removed, and to restore LICENSOR premises and properly to a neat and
safe condition to the satisfaction of LICENSOR'S designated Engineer or Representative, and if LICENSEE shall fail to do so
within said time, LICENSOR shall have the right, but not the duty, to remove and restore the same, at the risk and expense of
LICENSEE.
Section 5. INDEMNITYiLIABILITY.
5.1. LICENSOR shall not be responsible for any damage to LICENSEE'S Facilities at any time while this Agreement is in
effect.
5.2 (a) LICENSEE HEREBY AGREES TO INDEMNIFY, SAVE, HOLD HARMLESS AND DEFEND LICENSOR AND
ITS PARENT, AFFILIATES AND EACH OF THEIR RESPECTIVE DIRECTORS, OFFICERS, AGENTS AND
EMPLOYEES FROM AND AGAINST (I) INJURY TO OR DEATH OF ANY PERSON OR PERSONS IWHOMSOEVER,
INCLUDING BUT NOT LIMITED TO THE AGENTS, EMPLOYEES OR CONTRACTOR(S) OF THE PARTIES
HERETO, AND (II) THE LOSS OR DAMAGE TO ANY PROPERTY WHATSOEVER, INCLUDING PROPERTY
CLAIMS, DEMANDS, SUITS, ruDGMENTS OR EXPENSES INCURRED IN CONNECTION THEREV/ITH,
RESULTING FROM OR ARISING OUT OF THE ACTS OR OMISSIONS OF LICENSEE, ITS AGENTS, EMPLO\'EES
oR CONTRACTOR(S), OR RESULTING FROM, ARISING OUT OF, OR OCCURRING IN CONNECTION V/ITH THE
ENTRY OR PRESENCE OF LICENSEE, ITS AGENTS, EMPLOYEES OR CONTRACTOR(S) ON THE PROPERTY, OR
RESULTING FROM, ARISING OUT OF, OR OCCURRING IN CONNECTION V/ITH THE PERFORMANCE OR
EXECUTION OF ANY V/ORK PERT'ORMED UNDER THIS AGREEMENT OR INCIDENTAL THERETO, INCLUDING
BUT NOT LIMITED TO THE USE AND OCCUPANCY OF LICENSEE'S FACILITIES BY LICENSEE, ITS
PERMITTEES, INVITEES OR ANY OTHER PERSON OR ENTITY.
(b) THE PARTIES ACKNOV/LEDGE THAT THE USE OF LICENSOR'S PREMISES IS FOR THE SOLE
CONVENIENCE OF LICENSEE AND THAT LICENSOR SHALL HAVE NO DUTY TO LICENSEE, ITS OFFICERS,
EMPLOYEES, AGENTS OR CONTRACTORS TO PROVIDE A REASONABLY SAFE PLACE IN IWHICH TO WORK,
TO PROVIDE ADEQUATE OR SAFE METHODS AND EQUIPMENT FOR THEIR V/ORK OR TO INSPECT OR
MAINTAIN LICENSEE'S FACILITIES FOR SAID SAFE METHODS AND WORK EQUIPMENT NOR TO GTVE ANY
WARNINGS OR OTHER NOTICES TO LICENSEE'S EMPLOYEES OR INVITEES REGARDING SAFETY EITHER OF
LICENSEE'S FACILITIES AND RELATED V/ORKPLACE OR LICENSOR'S PROXIMATE RAILROAD OPERATIONS
AND THAT ALL SUCH DUTIES SHALL BE ASSUMED BY LICENSEE WHO FURTHER AGREES TO DEFEND AND
HOLD HARMLESS LICENSOR, ITS PARENT AND AFFILIATES FROM ANY AND ALL CLAIMS ALLEGING ANY
FAILLIRE TO PERFORM SAID DUTIES.
(c) IN NO EVENT UNDER THIS AGREEMENT \ryILL LICENSOR HAVE ANY LIABILITY FOR INDIRECT,
SPECIAL, PUNITIVE,INCIDENTAL OR CONSEQUENTIAL DAMAGES. THE TERM "LICE,NSOR'' AS USED IN THIS
SECTION 5 SHALL INCLUDE THE SUCCESSORS, ASSIGNS, AND AFFILIATED COMPANIES OF LICENSOR AND
ANY OTHER RAILROAD COMPANY THAT MAY BE LA'WFULLY OPERATING UPON AND OVER THE TRACKS,
OR THE TRACKS CROSSING OR ADJACENT TO THE TRACKS, AND THE OFFICERS, AGENTS, INVITEES AND
EMPLOYEES THEREOF.
Form PPL-CLX-04-2014
Page 3 of l0
Section 6. RESERVED.
Permit No. SJVR 140601
Section 7. RESERVED.
Section 8. ASSIGNMENT.
This Agreement or Occupancy herein granted may not be transferred, assigned or sublet to another party not a signatory
hereto without the prior written approval of LICENSOR. Said approval by LICENSO\ subject to LICENSEE'S satisfaction of
applicable transfer of rights or assignment fees in effect at that time, shall not be unreasonably withheld.
Section 9. ENVIRONMENTALIHAZARDOUS MATERIALS.
LICENSOR may, at LICENSOR'S sole discretion, during the removal of LICENSEE'S Facilities in accordance with
Section 9, require LICENSEE to conduct an environmental appraisal and report of the property formerly occupied by
LICENSEE'S Facilities at LICENSEE'S sole cost and expense. All rcports shall be prepared by a LICENSOR approved
environmental consultant, to determine if LICENSOR'S property has been environmentally impacted by said Occupancy. All
environmental reporls, which are prepared subject to this clause, shall be immediately available to LICENSOR by LICENSEE
and shall be treated as confidential information by the parties unless disclosure of such environmental reports are required by
law. This clause shall survive termination of this Agreement.
Section 10. NOTIFICATION.
In the case of emergency repairs, LICENSEE shall contact LICENSOR by calling LICENSOR's emergency number at
(866) 527-3499 in order to obtain LICENSOR'S consent prior to entering LICENSOR's property.
Section 11. RESERVED.
Section 12. ALTERATIONS/REPAIRS.
12.1 ln the event LICENSEE desires to make changes in the physical or operational characteristics of said Occupancy,
LICENSEE shall first obtain in writing the consent and approval of LICENSOR.
12.2 Any enùy onto LICENSOR'S property by LICENSEE, its employees, agents, representatives or contractors after
LICENSEE'S Facilities have initially been constructed shall occur only upon obtaining LICENSOR'S consent pursuant to
Section 12 herein, if required, and entering into an additional CONTRACTOR RIGHT OF ENTRY LICENSE AGREEMENT
with LICENSOR prior to entry. LICENSEE agrees that any physical or operational changes that LICENSEE desires to make
shall be made at LICENSEE'S sole risk, cost and €xpense and subject to all the telms, covenants conditions and limitation of
this Agreement. Any "flagging" services determined at LICENSOR's sole discretion to be necessary shall be at LICENSEE'S
sole cost and expense.
Section 13. RESERVED.
Section 14.INSURANCE.
LICENSEE agrees to comply with the INSURANCE REQUIREMENTS, attached hereto as Exhibit C and
made a part hereof, and shall provide the required Certificate of Insurance to LICENSOR simultaneous to the
execution of this Agreement.
Section 15. RESERVED.
Section 16. RESERVED.
Section 17. RESERVED.
Section 18. GOVERNMENTAL REOUIREMENTS.
Form PPL-CLX-04-2014
Page 4 of 10
Permit No. SJVR 140601
18.1 LICENSEE shall comply with any and all laws, statutes, ordinances, rules, regulations, orders, decisions (collectively, the
"Laws"), issued by any federal, state or municipal goverlìmental body or agency established thereby ("Authority"), relating to
the construction, maintenance, and use of the LICENSEE's Facilities by LICENSEE and any the use of LICENSOR'S property.
18.2 LICENSEE, in its Occupancy as granted herein, shall not create or permit any condition on LICENSOR's property that
could present athreat to human health or to the environment. LICENSEE shall at all times be in full compliance with all Laws,
present or future, set by any Authorþ, including but not limited to any, environmental laws concerning water qualþ (surface
of underground), hazardous substances and hazardous waste(s).
18.3 Should any discharge, leakage, spillage, emission or pollution of any type occur or arise on LICENSOR's Propefty as a
result of LICENSEE'S presence, use, operation or exercise of the rights granted herein, LICENSEE shall immediately notify
LICENSOR and shall, at LICENSEE'S expense, be obligated to clean all property affected thereby, whether owned or
controlled by LICENSOR or any third persons, to the satisfaction of LICENSOR (insofar as the property owned or controlled
by LICENSOR is concerned) and any governmental body having jurisdiction in the matter. LICENSOR may, at is option, clean
the property; if LICENSOR elects to do so, LICENSEE shall pay LICENSOR the reasonable cost of such cleanup promptly
upon the receipt ofa bill therefor.
18.4 LICENSEE AGREES TO RELEASE, INDEMNIFY AND DEFEND LICENSOR AND ITS PARENT AND
AFFILIATES FROM AND AGAINST ALL LIABILITY, COST AND EXPENSE (INCLUDING, V/ITHOUT LIMITATION,
ANY FINES, PENALTIES, ruDGMENTS, LITIGATION COSTS AND ATTORNEY FEES) INCURRED BY LICENSOR
AS A RESULT OF LICENSEE,'S BREACH OF THIS SECTION 18 REGARDLESS OF LICENSOR'S NEGLIGENCE,
EXCEPT TO TIIE EXTENT ANY SUCH LIABILITIES, COSTS AND EXPENSES ARE SOLELY CAUSED BY THE
GROSS NEGLIGENCE OF LICENSOR, ITS OFFICERS, AGENTS, INVITEES OREMPLOYEES.
Section 19. RESERVED.
Section 20. RESERVED.
Section 21. RESERVED.
Section 22. LEG AL NOTICES.
Any notice, demand, approval, consents or communication required, permitted or desired to be given hereunder shall be in
writing and shall be served on the parties at the following respective addresses:
LICENSEE:City of Fresno - Wastewater Management Division
5607 West Jensen Ave.
Fresno, Cy'.93706-9458
Attention: Kevin Norgaard
San Joaquin Valley Railroad
c/o Genesee & V/yoming Railroad Services, Inc.
Real Estate Depaftment
13901 Sutton Park Drive South
Suite 160
Jacksonville, FL 32224
Copy to:
General Counsel
Genesee & Wyoming Inc.
20 West Avenue
Darien, CT 06820
LICENSOR:
the attention of such other person or officer, as any party may by written notice designate. Any notice, demand or
communication required, permitted or desired to be given hereunder shall be sent either (a) by hand delivery, in which case
Form PPL-CLX-04-2014 Permit No. SJVR 140601
Page 5 of 10
notice shall be deemed received when actually delivered, (b) by prepaid certif,red or registered mail, return receipt requested, in
which case notice shall be deemed received three calendar days after deposit, postage prepaid in the United States Mail, or (c)
by a nationally recognized overnight courier, in which case notice shall be deemed received one business day after deposit with
such courier.
Section 23. SPECIAL PROVISIONS.
If required by LICENSOR, LICENSEE at its sole cost and expense, shall fumish LICENSOR with a survey drawing, showing
the final exact location of said Occupancy and LICENSEE'S Facilities. The survey drawing shall indicate LICENSOR'S
survey valuation station which said installation is located, and/or the position of LICENSEE'S Facilities in relation to the center
line of the track and/or the centerline of the closest public street crossing said track(s). Said survey drawing to be attached to
this Agreement as Exhibit B and made a part hereof.
Section 24. PRIOR AGREEMENTS.
Execution of this Agreement shall supersede and/or cancel, as of the date first above written, any and all previous agreements, if
any, related to the Occupancy and use herein described, which may exist between the parlies or their predecessors.
Section 25. APPLICABLE LAW.
This Agreement shall be govemed by and construed under the laws of the State of CA without regard to the choice of law
provisions thereof.
Section 26. INTERPRETATION/SEVERABILITY.
To the maximum extent possible, each provision of this Agreement shall be interpreted in such manner as to be effective and
valid under applicable law, but if any provision of this Agreement shall be prohibited by, or held to be invalid under, applicable
law, such provision shall be ineffective solely to the extent of such prohibition or invalidity, and this shall not invalidate the
remainder of such provision or any other provision of this Agreement.
Section 26. HEADINGS. The headings of the Sections of this Agreement are inserted for convenience only and are not
intended to goveur, limit or aid in the construction of any term or provision of this Agreement.
Section 27. CONSTRUCTION OF TERMS. The terms of this Agreement have been arrived at after mutual negotiation and,
therefore, it is the intention of the Parties that its terms not be construed against any of the Parties by reason of the fact that it
was prepared by one of the Parties.
Section 28. COUNTERPARTS.
This Agreement may be executed in multiple counterparts, each of which shall, for all purposes, be
deemed an original but which together shall constitute one and the same instrument, and counterparts of this Agreement may
also be exchanged via electronic facsimile machines and any electronic facsimile of any patty's signatule shall be deemed to be
an original signature for all putpose.
(Signature Page Follows)
Form PPL-CLX-04-2014
Page 6 of 10
PermitNo. SJVR14060l
THIS AGREEMENT IS hereby declared to be binding upon the parties hereto.
IN V/ITNESS WHEREpF, the undersigned have hereunto set their hand and seals this â5W day of
W¿tP-zoú1$[ffi
WITNESS
WITNESS LICENSOR
San Joaquin Valley Railroad
by: TonyD. Long
its: Vice President
LICENSEE
FRESNO,CITY OF - WASTEWATER MGT DIVISION
by:
its:
Signed:
ATTEST:
'z) tzl t 5
WONNE SPENCE, CMC
. crTY cLqRK
Form PPL-CLX-04-2014
Page 7 of 10
Permit No. SJVR 140601
EXHIBITA
LICENSEE'S FACILITIES
Form PPL-CLX-04-2014
Page 8 of l0
Permit No. SJVR 14060f
EXHIBITB
SURVEY
Form PPL-CLX-04-2014
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PermitNo. SJVR140601
EXHIBIT C
INSURANCE REQUIREMENTS
(a) The Licensee shall, at its own cost and expense, prior to entry onto Licensor's Property or the
commencement of any work pursuant to this Agreement, procure and thereafter maintain throughout the term of
this Agreement the following types and minimum amounts of insurance:
(Ð The Licensee shall maintain Public Liability or Commercial General Liabilitv
Insurance ("CGL"), including Contractual Liability Coverage and CG 24 l7 "Contractual Liability
- Railroads" endorsernent, covering all liabilities assumed by the Licensee under this Agreement,
without exception or restriction of any kind, with a combined single limit of not less than Two
Million Dollars ($2,000,000) for Bodily Itrju.y and/or Property Damage Liability per occurrence,
and an aggregate limit of not less than Six Million Dollars ($6,000,000) per annual policy period.
Such insurance policy shall be endorsed to provide a Waiver of Subrogation in favor of the
Licensor and its affiliates and shall name the Licensor and its affiliates as Additional
Insured. An Umbrella or Excess policy may be utilized to satisff the required limits of liability
under this section, but must "follow form" and afford no less coverage than the primary policy.
(ii) The Licensee shall maintain Commercial Automobile Insurance for all owned,
non-owned and hired vehicles with a combined single limit of not less than One Million Dollars
($1,000,000) for Bodily Itrj,try andlor Property Damage Liability per occurrence. Such insurance
policy shall be endorsed to provide a Waiver of Subrogation in favor of the Licensor and its
affiliates and shall name the Licensor and its affiliates as Additional Insured.
(iiÐ The Licensee shall maintain Statutory Workers' Compensation and Emplo)rers'
Liabilitv Insurance for its employees (if any) with minimum limits of not less than One Million
Dollars ($1,000,000) for Bodily Injury by Accident, Each Accident; One Million Dollars
($1,000,000) for Bodily Injury by Disease, Policy Limit; One Million Dollars ($1,000,000) for
Bodily Injury by Disease, Each Employee. Such insurance policy shall be endorsed to provide a
Waiver of Subrogation in favor of the Licensor and its affiliates, if applicable.
(iv) Prior to any construction project within 50' of the railroad track, the Licensee shall
purchase Railroad Protective Liabilitv Insurance naming the
Railroad as the named insured with limits of Two Million Dollars ($2,000,000) each occurrence and Six
Million Dollars ($6,000,000) aggregate lirnit The policy shall be issued on a standard ISO form CG 00 35
12 03, or, if available, obtain such coverage from the Railroad'
(b) The following general insurance requirements shall apply:
(Ð The specified insurance policies must be effected under standard form policies
underwritten by insurers licensed in the state where work is to be performed, and carry a minimum
Best's rating of "A-" and size "Class VII" or better. The Licensor reserves the right to reject as
inadequate any insurance coverage provided by an insurer that is rated less than the ratings
specified in this section.
(iÐ All coverages shall be primary and non-contributory to any insurance
coverages maintained by the Licensor and its affiliates.
(iiÐ All insurance policies shall be endorsed to provide the Licensor with thirty (30)
days prior written notice of cancellation, non-renewal or material changes.
Form PPI-CLX-04-2014
Page 10 of l0
Permit No. SJVR 140601
(iv) The Licensee shall provide the Licensor ìMith ceftificates of insurance evidencing
the insurance coverages, terms and conditions required prior to commencement of any activities on
or about the Property. Said certificates should reference this Occupancy License Agreement by
agreement date and description and shall be furnished to the Licensor at the following address, or
to such other address as the Licensor may hereafter specif':
San Joaquin ValleY Railroad
C/O Genesee &'Wyoming Railroad Services,Inc.
13901 Sutton Park Drive South, Suite 160
Jacksonville,FL 32224
(v) If any policies providing the required coverages are written on a Claims-Made
basis, the following shall aPPIY:
(l) The retroactive date shall be prior to the commencement of the
work;
(2) The Licensee shall maintain such policies on a continuous basis;
(3) If there is a change in insurer or policies are canceled or not
renewed, the Licensee shall purchase an extended reporting period of not less than
three (3) years after the contract completion date; and
(4) Licensee shall arrange for adequate time for reporting of any loss
under this Agreement.
(c) The Licensor may require the Licensee to purchase additional insurance if the Licensor
reasonably determines that the amount of insurance then being maintained by the Licensee is insufficient
in light oi all relevant factors. If the Licensee is required to purchase additional insurance, the Licensor
will notiff the Licensee. Failure of the Licensee to comply within thiúy (30) days shall be considered a
default subject to termination of the Agreement'
(d) Furnishing of insurance by the Licensee shall not limit the Licensee's liabilify under this
Agreement, but shall be additional security therefore.
(e) The above indicated insurance coverages shall be enforceable by any legitimate claimant after the
termination or cancellation of this Agreement, or any amendment hereto, whether by expiration of time, by
operation of law or otherwise, so long as the basis of the claim against the insurance company occurred during the
period of time when the Agreement was in effect and the insurance was in force.
(Ð Failure to provide the required insurance coverages or endorsements (including contractual
liability endorsement) or adequate reporting time shall be at Licensee's sole risk.
(g) If contractors are utilized, the Licensee agrees to require all such contractors to comply with the
insurance requirements of this
Agreement.
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