2021-27340 HOC# 2021-0027340
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Recording Requested by Jan 13
North County Transit District , 2021 03:05 PM
OFFICIAL RECORDS
Ernest J. Dronenburg, Jr.,
When recorded, mail to: SAN DIEGO COUNTY RECORDER
FEES` p:0p (Sg2 Atkins:50.00
North County Transit District )
810 Mission Avenue PAGES: 18
Oceanside, CA 92054
Attn: Real Estate Department
SPACE ABOVE FOR RECORDER'S USE
MEMORANDUM,OF UNDERSTANDING AND
LICENSE AGREEMENT
THIS MEMORANDUM OF UNDERSTANDING AND LICENSE AGREEMENT ("Agreement" or
"License") is made and entered into as of the effective date of May 1, 2020 ("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 the City of Encinitas,
a California Municipal Corporation ("City"or"Licensee"), collectively referred to as the"Parties".
RECITALS
A. NCTD has certain policies and regulations as well as obligations under state and federal law
(collectively the"ROW Policies")governing the use of its Right-of.-Way("ROW").
B. NCTD prohibits vehicular access, public parking and pedestrian access on its ROW(collectively
"Trespassing").
C. NCTD has significant costs related to enforcement of Trespassing and general maintenance of its
ROW within the City due to trespassing of pedestrians and vehicles.
D. The City of Encinitas is in need of public parking and various street improvements (collectively,
"Improvements") along the Coast Highway corridor for general business, commercial, retail and
other uses, as part of its North Coast Highway 101 Streetscape Project Phase I (the"Project").
E. In exchange for the use of the ROW for the Improvements; City has agreed to maintain the licensed
ROW area at its own costs and to assume all related liability for such use and maintenance (the
"Mutual Benefit").
F. Licensee has applied for the issuance of a License in accordance with the ROW Policies and NCTD
has agreed to allow Licensee to use that portion of the ROW identified in .Exhibit ."A" ("License
Area"), subject to the terms and conditions of this Agreement.
G. 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 to and permits Licensee use of the License Area as further defined in Exhibit"A"
attached hereto and incorporated herein by, reference for the sole purpose of the Project
Improvements. NCTD and City agree to execute this Agreement prior to 100% design of the
235.1-237.7-0520-M I SC-ENC 1
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proposed improvements (the "Revised Exhibit", consisting of Exhibit "B"). Acceptance of the
Revised Exhibit shall be.confirmed by the execution of the Acceptance of the Revised Exhibit
Memorandum, attached as Exhibit"E", at which time the Revised Exhibit shall be attached hereto
and incorporated by reference herein. The rights.and obligations in this Agreement shall not be
effective until such time as NCTD has accepted the Revised Exhibit, and the License Area will
remain unimproved until the full 100% design of the Improvements is approved by NCTD and
attached to this Agreement as Exhibit"B"as part of the Revised Exhibit,
The Parties agree and understand that the Project Improvements represent a temporary condition
and are not the final and permanent improvements. Additionally,the Parties agree and understand
that the Project Improvements may need to be- modified, relocated or removed upon the
commencement of the San Diego Association of Governments("SANDAG")double tracking.project
within Encinitas("Encinitas Double Track"). Upon funding and design of the Encinitas Double Track
by SANDAG the parties will enter into a new agreement pursuant to the terms of Section 13 below.
2. Authority Not Exclusive. This License is non-exclusive. The Licensee shall respect the.rights
and property of NCTD and other authorized users of the ROW, easements, power poles, street
light poles,vaults,and conduits. Except as otherwise required by applicable law,disputes between
the Licensee and parties other than NCTD over the use, pursuant to this Agreement, of the
easements,-power poles, street light poles, vaults, conduits and other rights-of-way shall be
submitted to NCTD for resolution.
3. Relocation. Licensee shall, at Licensee's sole expense and within a time period mutually
agreeable to the Parties but at least one hundred and eighty (180) days after receiving written
notice from NCTD,protect,temporarily relocate,or remove the Improvements if NCTD determines,
in its sole and absolute discretion,that the Improvements are inconsistent or interfere with NCTD's
current or planned use of the License Area or ROW. In consideration of NCTD's agreement to
enter into this License, Licensee hereby waives any and all rights it may now have, or hereafter.
obtain, to any "relocation assistance benefits" pursuant to the Federal Uniform Relocation
Assistance Act (42 U.S.C. §-4601 et seq.), the California Relocation Assistance law (Cal. Gov.
Code§7260 et seq.) or any other statute that replaces or provides rights similar to such statutes,
if NCTD makes use of the ROW in such a way as to 'displace' Licensee from the License Area.
Licensee shall in the future execute any further documentation of the release and waiver provided
hereby as NCTD may reasonably require.
4. Compensation/Mutual Benefit. The Mutual Benefit received by the Parties is in lieu of any
- monetary compensation or"License Fee"for the use of the License Area. In order to provide a
Mutual Benefit, NCTD will allow the use of the License Area in exchange for the maintenance and-
enforcement of the.License Area at City's sole cost and a release of liability/hold harmless provision
pursuant to Sections 7 and 10 of this Agreement. The Mutual Benefit as further described in Exhibit
"D"and provided herein shall constitute a Reciprocal Benefit in accordance with NCTD Board Policy
No. 11.
Nothing in this Section 4 shall affect the right of NCTD to require Licensee to relocate or remove
the Improvements as set forth in Section 3 and Section 5.2.
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.
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
License Area and Improvements.
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5.2 Consistent with Federal Transit Administration requirements, the Licensee's use of the
License Area must not in any way interfere with NCTD's continuing control over the ROW or
NCTD's expressed continued ability to carry out its functions. NCTD shall have the right to
terminate this License at any time 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,ior 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
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)
defined as a"regulated medical waste"under 40 C.F.R.§259.10(a)or§259.30,(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 without prior written permission from NCTD in its sole and absolute discretion. Any
construction or maintenance activity shall require a Right of Entry Permit(see Sections 8 and
10).
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 License,
Licensee shall provide and maintain during the term of this License, at Licensee's sole expense,
insurance in the amounts and form specified in Exhibit"C", INSURANCE REQUIREMENTS.
7. Indemnification. Licensee agrees to protect, save, defend, and hold harmless NCTD and its
Board of Directors ("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") (collectively, the"Indemnified
Parties");and the Indemnified Parties'respective officers,agents,contractors 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 (City
invitee), or contractor of Licensee, or other person acting by or on behalf of Licensee on or about
the License Area, including, but not limited to, liability, expense,and claims for bodily injury,death',
personal injury, or property damage; provided, however, that; ('1) 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 for any and all Claims related to the design or
235.1-237.7-0520-MISC-ENC 3
height of the fence improvements and/or trespassing on the ROW as a result of the design or height
of the fence improvements;and(2)nothing herein,shall relieve any Indemnified Parties from liability
to the extent that such liability arises from such party's established negligence or willful misconduct
for all other Claims:
Any design deviation of the Improvements other than the fence as identified herein from the Design
Criteria Vol III LOSSAN Corridor in San Diego County or the LOSSAN Corridor-San Diego
Subdivision Engineering Standard Drawings.(ESD) shall require review and approval of NCTD in
its sole and absolute discretion and shall require an amendment to this Section 7.
The requirements as to the types and limits of 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.
8. Construction.
8.1 Subject to NCTD's approval of the Improvements pursuant to Section 1, any work performed
or caused to be performed by Licensee on the License Area shall be performed under an
NCTD Right of Entry Permit ("ROE"); (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 that
meets or exceeds the then-applicable standards of the industry for such work.
8.2 NCTD intends to install fencing along the ROW throughout the City in order to protect the
ROW from trespassing. As part of the Project Improvements NCTD is agreeable to allowing
an alternative fencing design subject to: (1)the insurance and indemnity provided by the City
in Sections 6 and 7 above; and (2)the City agrees that the difference in the cost of the fence
between NCTD's standard and City's requested alternative shall be at City's sole cost and
expense(the"Fence Cost Delta"). City shall reimburse NCTD the Fence Cost Delta pursuant
to Section 9 below. The timing of the fence installation shall be as soon as practicable as
agreed between the parties with NCTD making the final determination. City's proposed
alternative fence design shall be included in Exhibit"B".
8.3 Prior to the commencement of any work within the License Area, 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 in order to issue a
ROE.
8.4 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.
8.5 Every individual who will be performing work in 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 Safety rules and regulations. Licensee shall pay all costs
associated with such class.
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8.6 .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 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.
8.7 Licensee shall,upon NCTD's request and at Licensee's expense,install barrier fencing,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.
8.8 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
Section 8.8, 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.
8.9 Storm Water Pollution Prevention:: Compliance with Construction General Permit for the
License:,
.8.9.1 If coverage under the Construction General Permit and/or NCTD MS4 Program
requirements (as defined in this Section 8.8.1) 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 8.8, "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.
8.9.2 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
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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
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.
8.9.3 Without limiting the provisions set forth in Sections 5.1, 8.1, 8.8.1 and 8.8.2, 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.
8.9.4 The Licensee shall pay and be responsible for all fees, as applicable and as required
by SWRCB, during the term of this Agreement.
8.9.5 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.
8.9.6 As required by Licensee'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 sixty (60) days of invoice,for
all cost and expense incurred by NCTD in connection with NCTD's review and processing of any
work performed by or for Licensee on the License Area. These costs include, but are not limited
to, NCTD staff time and consultant's 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. 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 30 days of invoice.
10. Maintenance, Enforcement and Repair. Licensee shall, at Licensee's sole expense, maintain
the condition,and enforce the use of the Improvements.and License Area in a condition satisfactory
to NCTD and in accordancewith all laws and ROW Policies. Licensee shall at all times maintain
the License Area in accordance with the terms of this Agreement, as is its obligation under the
agreed upon Mutual Benefit. At a minimum Licensee shall keep the Improvements and License
Area in a clean and safe.condition for its intended use and shall enforce any misuse within or
Trespassing from the License Area. The broader scope of Licensee's maintenance enforcement
obligations is provided in Exhibit"D"attached hereto and incorporated herein by reference. Failure
to maintain the License Area pursuant to the minimum requirements in Exhibit "D" shall be a
material breach of this Agreement which may result in termination pursuant to Section 12 below.
Licensee shall be responsible for any citations issued by any agency having jurisdiction as a result
235.1-237.7-0520-MISC-ENC 6
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of Licensee's failure to comply with any applicable law, regulation, ordinance, rule, or order.
Individual or"blanket" ROE's for specific maintenance work may be required in NCTD's sole and
absolute discretion.
11. Taxes. Nothing contained in this Agreement shall be construed to exempt the Licensee from any
tax levy or assessment which is or may be hereafter lawfully imposed. Notice is hereby given
pursuant to Revenue and Tax Code Article 107.6 that this License may create a property interest
subject to property taxation and may subject Licensee to the payment of property taxes levied on
such interest.
12. Default; Termination. In the event that Licensee fails to perform any obligation under this
Agreement, including maintaining the Mutual Benefit as provided herein, Licensee shall pay all
costs and expenses incurred by NCTD in obtaining performance of such obligations,including costs
of suit and reasonable attorney's fees. If Licensee uses the ROW 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 sixty (60) 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,
with or without process of law.
Either party may terminate this Agreement at any time and for any reason by giving written notice
to the other Party of such termination,and specifying the effective date thereof at least one hundred
eighty(180) days prior to the effective date.
Upon termination of this Agreement all Improvements shall be and remain a.part of the License
Area; or in the sole discretion of NCTD Licensee shall, at Licensee's sole expense, remove the
Improvements and all other Licensee improvements in or upon the ROW and restore the ROW in
a manner satisfactory to NCTD. Should Licensee fail or refuse to comply with the terms of this
Section 12, NCTD may, at its option, perform such work, and Licensee shall reimburse NCTD for
all costs and damages so incurred.
13. Encinitas Double Track.- The Parties agree and understand that the Project Improvements
provided herein are within the portion of the ROW which may be utilized by NCTD and SANDAG
for the future Encinitas Double Track project. NCTD shall provide written notice to City at the time
of Encinitas Double Track project design by SANDAG and/or funding of said project("Double Track
Notice"), the Parties shall work collaboratively to enter into a new agreement for the permanent
streetscape improvements which shall be compatible with Encinitas Double Track as approved by
NCTD in its sole and absolute discretion and confirmed consistent by SANDAG. If.no agreement
can be reached within one hundred-eighty(180)days of Double Track Notice,NCTD may terminate
this Agreement pursuant to the terms of Section 12. Any removal, relocation, or other costs
including but not limited to engineering and design of any replacement/future streetscape
improvements shall be at City's sole cost.
14. 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 Encinitas
810 Mission Avenue 550 South Vulcan Avenue
Oceanside, CA 92054 Encinitas, CA 92024
Attention: Real Estate Department Attention: Development Services
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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)435-7273.
.14. 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
overthe tracks does and will produce vibrations which may affect the Improvements 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.
15. No Permanent Interest. This Agreement does not convey any permanent interest in any real
property, nor does it confer any right or obligation to any third party, including but not limited to,
public access rights under any law, regulation or ordinance of any local, state or federal agency.
Should any third party assert such a claim of right, title or interest, Licensee shall defend and
indemnity NCTD pursuant to Section 7 of this Agreement. City expressly agrees and understands
that any removal or relocation of any Improvements required under this Agreement, including but
not limited to parking, shall be at City's sole expense, cost and risk.
16. Laws and Venues. This Agreement shall be interpreted 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. 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 License, 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 with regard to the License Area. NCTD shall not be
responsible for any latent defect or change in condition in the License Area and Licensee's
obligations under this License 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. 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,and Licensee specifically waives all rights under California
Civil Code section 1542,which provides as follows:
"A general release does not extend to claims that the creditor or releasing party does not
know or suspect to exist in his or her favor at the time of executing the release and that, if
known by him or her, would have materially affected his or her settlement with the debtor
or released party."
Initial:
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18. Counterparts. This Agreement may be executed in counterparts, each of which shall.be deemed
to be an original, but all of which, taken together, shall constitute one and the same agreement.
IN WITNESS WHEREOF, the Parties have signed below, effective as of the Effective Date, by their duly
authorized representatives.
NCTD: LICENSEE:
North County Transit District City of Encinitas:.
By.
Name: lr � ✓ anie'_ t�n_ "w✓ -.
l� r°T �� ( �p� Title: �dca ..
Title: 3'--'�' ��_�
Approve.- ,St., Forma. Legality Approved as to Form
Lori A. Winfree Leslie E. Devaney
General Counsel City Attorney
i
235.1-237.7-0520-M I S C-E N C 9
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A notary public or other officer completing this certificate verifies only the identity of the individual
j who signed the document to which this certificate is attached, and not the truthfulness, accuracy,
or validity of that document.
STATE OF CALIFORNIA )
COUNTY OFSRr7 DJ )
On P&.4 p� ,20_q before me, 5t at?d I L• /-- s a Notary
Public in find for said State, personally appeared -fe'n z) c-r' T pb-e G! -°I
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument.and acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity(ies),and that by his/her/their signature(s)on the instrument the
person(s),or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official.seal.
V
Notary Public in and For at late
(SEAL)
dw BRANDI L.LEWIS
i Notary Public-California
San Diego County
` e Commission#2242688
' My Comm.Expires May 14,2022 M
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235.1-237.7-0520-MISC-ENC 10
A notary public or other officer completing this certificate verifies only the identity of the individual
who signed the document to which this certificate is attached, and not the truthfulness, accuracy,
or validity of that document.
STATE OF CALIFORNIA )
COUNTY OF
On Julke g , 202a, before me, (�el � dr! �� ;a Notary
Public in and for said State, personally appeared r r _q pS to ,
who proved tome on the basis of satisfactory evidence to be tie pers .n�sy whose name; 'is/ e
subscribed to the within instrument and acknowledged to me that 1.e/sbe0ey,executed the;same
in[yi /her/Veir authorized capacity(ighl,and that by j,!1s/her/tf�b r si nlf'iire( on the instrument the
person, or the entity upon behalf of which the person(4 acted,.executedthe instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
SUHEIL RODRIGUEZ
Notary Public-California c t. {I lie in and said State
San Diego County >
P Commission k 2255664
Y ''a My Comm.Expires Sep 21,2022
(SEAL)
235.1-237.7-0520-M I SC-ENC 11
EXHIBIT.A—LICENSE AREA
Based on 70% Plan Set
Exhibit pages can be viewed in person at 301 S. Tremont Avenue, Oceanside, CA 92054.
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235.1-237.7-0520-MISC-ENC . 12
EXHIBIT B-APPROVED IMPROVEMENTS
235.1-237.7-0520-M ISC-ENC 13
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 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 and property damage liability, owned and non-owned vehicles and
equipment, blanket contractual liability and completed operations liability.
235.1-237.7-0520-MISC-ENC 14
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 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.
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.
235.1-237.7-0520-M I SC-ENC 15
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 by or on behalf of Licensee shall provide evidence of
insurance required herein prior to entering upon the Right-of-Way.
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.
235.1-237.7-0520-M I SC-EN C 16
EXHIBIT D--MAINTENANCE AND MUTUAL BENEFIT OBLIGATIONS
The City of Encinitas shall maintain the improvements identified in Exhibit B,which may include monitoring
and remediation of vegetation,fencing,erosion protection;trespass enforcement and replacement of worn
or damaged improvements. Additional general maintenance obligations include activities such as trash
removal, graffiti abatement, weedivegetation/debris and dust control as well as maintenance of any
drainage facilities or general run-on or other water intrusion.
Establishment of this MOU establishes a Mutual Benefit between NCTD and the City. The City's obligation
to maintain and enforce the Licensed Area relieves NCTD of the significant costs related to enforcement of
Trespassing and general maintenance described above and within the License Area.In exchange,the City
obtains use of the License Area for the Improvements along the Coast Highway corridor for the allowable
use(s).
235.1-237.7-0520-MISC-ENC 117
EXHIBIT E—Acceptance of Revised Exhibit Memorandum
Acceptance of Revised Exhibit Memorandum
NCTD and City accept the Revised Exhibit,attached hereto and incorporated by reference.
North County Transit District City of Encinitas
By: BY .
Title: Title:-
Date: Date:.
235.1-237.7-0520-MISC-ENC 18
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