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HomeMy WebLinkAbout2002-108 1 2 RESOLUTION NO. 2002-108 RESOLUTION OF THE CITY OF SAN BERNARDINO AUTHORIZING THE 3 EXECUTION OF A LICENSE AGREEMENT BETWEEN THE CITY OF SAN 4 BERNARDINO AND THE SAN BERNARDINO ASSOCIATED GOVERNMENTS (SANBAG) FOR CROSSING UNDER SANBAG PROPERTY AT MT. VIEW AVENUE 5 AND THE METRO LINK RAIL ROAD TRACK. 6 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY 7 OF SAN BERNARDINO AS FOLLOWS: 8 SECTION I. The Mayor of the City of San Bernardino is hereby authorized 9 and directed to execute on behalf of said City a cooperative agreement with San Bernardino 10 Associated Governments (SANBAG) for crossing under the SANBAG property at Mt. View 11 12 Avenue and the METROLINK railroad track, A copy of said cooperative agreement is 13 attached as Exhibit "A" and made a part hereof, 14 SECTION 2. The authorization to execute the above referenced agreement is rescinded 15 16 17 18 I I I if the parties to the agreement fail to execute it within sixty (60) days of the passage of this resolution, 19 I I I 20 21 22 23 24 25 26 27 28 2002-108 1 RESOLUTION AUTHORIZING THE EXECUTION OF A LICENSE 2 AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND SAN 3 BERNARDINO ASSOCIATED GOVERNMENTS (SANBAG) FOR CROSSING UNDER SANBAG PROPERTY AT MT. VIEW AVENUE AND THE METROLINK RAIL ROAD 4 TRACK. 5 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor 6 and Common Council of the City of San Bernardino at a j t. reg. meeting thereof, held , 2002, by the following vote, to wit: AYES NAYS ABSTAIN ABSENT x x x x x x x 19 20 21 2002, 22 23 24 25 Approved as to form and legal content: 26 ~v1bG6~ City Clerk The foregoing resolution is hereby approved this I b17f day of April I A~ 1/ Judith Valles, Mayor / City of San Bernardino 27 JAMES F, PENMAN, City Attorney 28 By: ~fN/ 1. r~ () 1- .\P[-12-0, 10: 44 MTR REAL ESTATE 213 922 2440 Fax:213-922-2440 l~i fA ORIGINAL LICENSE AGREEMENT BETWEEN P.02 R-I05 Apr 12 '02 10:26 Job-847 P.02 File: RRt"JD007622 SAN BERNARDINO ASSOCIATED GOVERNMENTS AND CITY OF SAN BERNARDINO EXHIBIT "A" APR-12-02 10:44 ., MTA RERL ESTRTE 213 m 2440 Fax:213-922-2440 P03 Rpr 12 '02 R-I05 10:26 Jcb-847 P.03 File: RRND007622 SOOOI092 LlCENSE AGREEMENT TIlis C NSE AGREEMENT ("Agreement") is made and entered into as of , 2002 by and between the SAN BERNARDINO ASSO TED GOVERNMENTS, a public agency existing tOlder the authority of the laws of tl e State of Califomia ("SANBAG"), and CiTY OF SAN BERNARDINO, a municipal corporation of the State of California, ("LICENSEE"), upon and in consideration of the agreements, covenants, terms and conditions below: PART I BASIC LlCENSE PROVISIONS 1, Description of License Property: An wlderground installation on SANBAG property at Mountain View Road at Lugonia Avenue in the City of San Bernardino on the Redlands Subdivision at Mile Post 5.16 as shown on Exhibit "A" Approximate area: Eleven Thousand Square Feet (11,000 Sq, Ft.) (5]1.1) 2, Use of License Property: Installation, opera.tion, maintenance and repair of one (1) tlllderground storm drain facility only, and no other uses (i 1.1, ~ 1 0) 3, Commencement Date: November 1, 2001 (fij1.2) 4. Tenn ~e one): ~ Month-to-month B, Nt A months, ending Nt A 20 Nt A, unless canceled by SANBAG as provided in Section 1,2 on 30 days' notice (!ii 12) 5 License Fees: A, Base License Fee: $Nt A per month, payable (circle one): a. f.dlilUillly ill a"ytlfiee b. Menthly ill aeYaIlcc C!ii2.1) G) Addi~License Fee: ~ One time fee; $1,000,00 b, Other fees: $NtA CS2,1) MT A Lic;l!:ll~e AStee.\\l!:nt - $AN"BAG V,,~::';\\tl 013100, Rcvigcd J01CO I-Rcvi!:cd-1/1 2102 i San '8e:m I1lb Works Mt View RRND007G22 06);101101001 Y 113 911 1440 Fax:213-922-2440 R-I05 10:26 Job-847 P.04 APR-l1-02 10:44 MTA REAL ESTRTE P.04 Rpr 12 '02 C. Base License Fee Adjustment Dates (Not applicable) a, Annually based OR CPI b. f.t intcryals of not 1css-l:&&rtmee (3) ye",,'s based ell sl:IffeRt fair market rent (fiJ2,2) 6, Insurance AmOlmt (See Exhibit "B") (116) 7, SANBAG's Address: SAN BERi~ARDINO ASSOCIATED GOVERNMENTS CIO LA COUNTY METROPOLITAN TRANSPORTATION AUTHORITY One Gateway Plaza - 13th Floor - RRND007622 Los Angeles, CA 90012-2952 Attn: Director of Real Estate (5124. I) 8, Lice11see's Address: CITY OF SA}; BERNARDINO DEPARTME}.;'T OF DEVELOPMENT SERVICES 300 N, "D" Street, 3,d Floor San Bernardino, California 92418 Attn: Mr. Mehran Sepehri 909-384-5127 (5124,1 ) 9, Facility: One (l) tmdergrOlmd storm drain facility (Ii 1.1) The foregoing Basic License Provisions and the General License Provisions set for111 in attached Palt II are incorporated into and made part of this Agreement, Mi^Lit;.Cn:;~^17llomtmt SANBAC Version 0\3100, Revised lOIOOl-Revised 4/12/02 ii S,ltl. 3em Ptlb Works Mt View RRND007622 061301 101001 Y I - APR-12-0210:44 MTA REAL ESTATE 213 922 2440 Fax:213-922-2440 P05 Apr 12 '02 R-105 10:26 Job-847 P.OS IN WlTNESS WHEREOF, the parties have caused this Agreement to be executed by their duly authOlized representatives as of the date first written above, SANBAG: SAN BER.."fARDINO ASSOCIATED GOVERNMENTS ByLl&~'Pv (l2{t{i-;#(LLL Name: Velma C, Marshall Title: Director of Real Estate For: Los Angeles COlUlty Metropolitan Transportation Authority As' Agent for SANBAG LICENSEE: CITY OF SAN BERNARDINO By: Name: Judith Val s Title: Mayor APPROVED AS TO FORM AND LEGAL CONTEN1. Jan;(':,~ ~. ":'-':-rn2.:1,. City!\ttc;'r;:::; MT^ Lil.";':m;;o; ^l~l;I:IIl.o;Ul- SANBAG Version 013100. Revised lOIOVI-Revised 4/12102 iii Sitn Bcm Pub Wooo MtVic:wRRNDOcn6n U~lJOI10100J Y . , INDEX TO LICENSE AGREEMENT - PART II Section Page 1, GRANT OF LICENSEITERM .",.""""""",.,.."..,.....",."",."",....,...........,.""",.",.""".....,..."",,1 2. PAYMENTS ,.....,.."."""""""""""",..."......"...""""""""..,..,........."."""""".,.',.......".."".""",,1 3, T AXES",.",.,..,..,..".",.""""""",.""".",.."..".".",."""""".,..,..,...,..".",."","",...."..."...",.""".".2 4, CONSTRUCTION ,."""""",.',..,..."....,.",...""""""".",....".,..".""".""""..',...,..",...""""",..,....,2 5, CONTRACTORS; APPROVAL AND INSURANCE.....,..,..,..,..""""",..".......,."".""""",....,..2 6. REIMBURSEMENT ".",."""""""."...".....",.",.".",."""".".,.".........""""""""."..,..,.""""""",3 7, LIENS ...... ". ". "" ", ", ",.", .... ".. ".. "" "" "", ", "" ", ", "" ". ". ".... ". ". "" ", "" ". ,.. ".. ".. "" "", "" "..., ,....3 8, MAINTENANCE AND REP AIR"""",.".."."..".""".",."""""",.".."..".""""""""..",.."".,.."".3 9, LANDSCAPING """""""""...."......",.",."""""""""""..,."."."""""""",....,..,..."".""""".."",.3 I 0, USE. ",. ",. ", """, ". ,.. ".. ". "" ",. "" ", """ ". ,... ". "., ". "" ", ", """""., ,.. .... ". """, "" ".. ,.., .... "" "", "",.3 II, ABANDONMENT """".......",.",.""""""""" .",....",.."..".""""""""....,.."...""".","""". ",..".4 12, BREACH.""", ", "" """, ,.., "., "., "., "., "" """, ", """,...".".". ". """"" "" ,.. ,.. "., "" "" "" "", "" ",.",.4 13, S URREND ER "".., "" ,.. "., ". ",., """, "", "" ",......,... "., ".", """", ", ", .." ,.. "..", "" "" "", "" ",. ",..",.4 14. INDEMNIFICATION ....",."""""""""",...',.""".".",."."""""."..".",."""."""""""."".."""",.4 15, ASSUMPTION OF RISK AND WAIVER ""..,."""""""""........,."""""""""".........".""""",5 16, INSURANCE",..,..""",."""""""""",..,..,....".".""".""""""",..,...",.",.""""""""..",...",...."",5 17, TESTS AND INSPECTIONS.. ".. "., ",. "" ", "" ", ", ", ,... ,..,......, "" ", "" ", ,........., "., ",. "", "" ".,., ".5 18, HAZARDOUSITOXIC MATERIALS USE AND INDEMNITY ".."..""...."........"...""""..,..5 19. UNDERGROUND STORAGE TANKS "",."""""""".."..,.."."."""""""",..""..",..",.""""",,6 20, SUBORDINATE RIGHTS "."""""""""",..".,..."....",."."""".'.,...,......".",.",."""",...,...,..,...,,6 21, COMPLIANCE WITH LAWS ",.",.'".........".".""""""""....."..,....,..,"".",............",.",."",."..6 22. CONDEMNATION ,."""."",...".",."".",."""",.,..,..,.."."."."."""""".....,.."..".",.""."..,...",..,,7 23, MARKERS ....."....""""".""...',............,.",."""""",""...."...."""""""".,...,.......,."""""",",..... 7 24, GENERAL PROVISIONS."..",.""""""""".,.."."."..".".,..".""",.."..,...,..".",.""""",.,..."..."" 7 Exhibits: "A" License Property "B" Insurance Requirements "C" Permitted Hazardous Materials MTA License Agreemenl- SANBAG Version 013100, Revised 101001 iv San Bern Pub Works Mt View RRNDOO7622 061301 101001 y PART II - GENERAL LICENSE PROVISIONS 1. GRANT OF LICENSE/TERM 1.1 Grant of License. SANBAG hereby grants a non-exclusive license to Licensee in, on, over, under, across and along the real property of SANBAG in the location shown in the diagram attached hereto as Exhibit A and described in Item 1 of the Basic License Provisions (the "License Prooertvl1), for construction, installation, operation, alteration, maintenance, reconstruction and/or removal of the Facility described in Item 9 of the Basic License Provisions, and any usual, necessary and related appurtenances thereto (the "facilitv"), for the purposes described in Item 2 of the Basic License Provisions, together with rights for access and entry onto the License Property as necessary or convenient for the use of the Facility. In connection with this grant of license, Licensee, its employees, agents, customers, visitors, invitees, licensees and contractors (collectively, "Licensee's Parties") subject to the provisions hereof, may have reasonable rights of entry and access onto adjoining real property of SANBAG if necessary for the use of the Facility or the License Property, with the time and manner of such entry and access to be subject to SANBAG's prior written approval. The License Property, adjoining real property of SAN BAG and personal property of SANBAG located thereon shall hereinafter collectively be referred to as "SAN BAG Property". 1.2 Term of A1ITeement. The term of this Agreement shall commence on the "Commencement Date" specified in Item 3 of the Basic License Provisions. Unless a specific term of this Agreement is filled in at Item 4.B of the Basic License Provisions, or if Item 4.A is circled, this Agreement shall continue in full force and effect on a month-to-month basis as provided in Item 4.A of the Basic License Provisions until terminated by either party on thirty (30) days' prior written notice. If Item 4.B of the Basic License Provisions is filled in, then this Agreement shall be a license for the term specified in said Item 4.B; provided, however, that SANBAG shall have the right to terminate this Agreement prior to the date specified in Item 4.B by delivering thirty (30) days' prior written notice to Licensee, provided that SANBAG, in its sole, reasonable judgment, determines that it then may require possession of the License Property for its primary, transportation-related purposes. The term of this Agreement as provided above is referred to as the "Term". 1.3 Condition of License Property, Licensee acknowledges that it has inspected and accepts the License Property in its present condition as suitable for the use for which this Agreement is granted. Execution of this Agreement by Licensee shall be conclusive to establish that the License Property is in good and satisfactory condition as of the Commencement Date. 2. PAYMENTS 2.1 License Fee. As consideration for the rights herein granted, Licensee agrees to pay to SANBAG the amount per month specified in Item 5 of the Basic License Provisions, as such amount may be adjusted as set forth in Section 2.2. If Item 5.B.a of the Basic License Provisions is circled, the one time fee noted therein shall be due and payable upon execution of this Agreement. If Item 5.B.b of the Basic License Provisions is circled, the fee noted therein shall be due and payable as indicated in that item. If Item 5.A.a of the Basic License Provisions is circled, an amount equal to twelve (12) times the Base License Fee, as such fee may be adjusted pursuant to the provisions of Section 2.2, shall be due and payable, without demand, annually in advance for the convenience of both parties, without affecting the Term of this Agreement as specified in Section 1.2. If Item 5.A.b of the Basic License Provisions is circled, the first month's Base License Fee noted therein shall be due and payable upon execution of this Agreement. Thereafter, the Base License Fee, as such fee may be adjusted pursuant to the provisions of Section 2.2, shall be due and payable, without demand, on or before the first day of each calendar month succeeding the Commencement Date during the Term, except that the Base License Fee for any fractional calendar month at the commencement or end of the Term shall be prorated on a daily basis. 2.2 License Fee Adjustment. 2.2.1 Annual CPI Adjustment. If Item 5.C.a of the Basic License Provisions is circled, then the Base License Fee shall be increased, but not decreased, as provided below on the first day of each month during which an annual anniversary of the Commencement Date occurs unless another date(s) is provided in Item 5 of the Basic License Provisions (the "Adiustment Date"). The adjusted Base License Fee as of each Adjustment Date shall be the greater of the Base License Fee on the day preceding that Adjustment Date or that amount multiplied by a fraction, the numerator of which is the CPI figure for the third month preceding the month during which the particular Adjustment Date occurs and the denominator of which is the CPI figure for the month that is three (3) months prior to the month MTA License Agreement- SANBAG Version San Bern Pub Works Mt View RRNIXlO7622 061301 101001 013100, Revised 101001 1 y containing the prior Adjustment Date or, if none, the Commencement Date. As used in this section, the "CPI" means the Consumer Price Index for Urban Wage Earners and Clerical Workers, Los Angeles/Riverside/Orange County, all items (1982-84 ~ 100), published by the U,S, Department of Labor, Bureau of Labor Statistics, or if such index is no longer published, the U.S. Department of Labor's most comprehensive official index then in use that most nearly corresponds to the index named above. If it is calculated from a base different from the base period 1982-84 = 100, figures used for calculating the adjustment shall first be converted to the base period used under a formula supplied by the Bureau. If a comparable index shall no longer be published by the U,S, Department of Labor, another index generally recognized as authoritative shall be substituted by SANBAG, 2,2,2 Fair Market Adiustment. If Item 5,C.b of the Basic License Provisions is circled, then, at intervals of not less than three (3) years, the Base License Fee (as such fee may be adjusted by Section 2.2.1, above) payable under this Section 2 shall be increased, but not decreased, in order to adjust the fee to the then fair market rental value of the License Property as determined by SANBAG in good faith. Such increases shall be effective on an anniversary date of the Commencement Date. SANBAG shall give Licensee written notice of the date and amount of any such adjustment not less than thirty (30) days prior to the applicable anniversary date. If no adjustment is made on the third anniversary of the Commencement Date, an adjustment may nevertheless be made on a subsequent date and thereafter at intervals of not less than three (3) years apart. 2.3 Late Charge. Licensee acknowledges that late payment by Licensee of any payment owed to SANBAG under this Agreement will cause SANBAG to incur costs not contemplated by this Agreement, the exact amount of such costs being extremely difficult and impracticable to fix. Therefore, if any payment due from Licensee is not received by SANBAG within five (5) days of when due, Licensee shall pay to SANBAG an additional sum of ten percent (10%) of the overdue payment as a late charge, up to a maximum amount of $500 for each late payment. The parties agree that this late charge represents a fair and reasonable estimate of the administrative costs that SANBAG will incur by reason of a late payment by Licensee. Acceptance of any late payment charge shall not constitute a waiver of Licensee's default with respect to the overdue payment, nor prevent SANBAG from exercising any of the other rights and remedies available to SANBAG under this Agreement, at law or in equity, including, but not limited to, the interest charge imposed pursuant to Section 24.5. 3, TAXES Licensee shall be liable for and agrees to pay promptly and prior to delinquency, any tax or assessment, including but not limited to any possessory interest tax, levied by any governmental authority: (a) agamst the Facility, the License Property and/or any personal property, fixtures or equipment of Licensee used in connection therewith or (b) as a result of the Facility's operations. 4. CONSTRUCTION Any work performed or caused to be performed by Licensee on the Facility or the License Property shall be performed (a) at Licensee's sole cost and expense; (b) in accordance with any and all applicable laws, rules and regulations (including the SANBAG's rules and regulations), and (c) in a manner which is (i) equal to or greater than the then applicable standards of the industry for such work, and (ii) satisfactory to SANBAG. Prior to commencement of any construction, reconstruction, installation, restoration, alteration, repair, replacement or removal (other than normal maintenance) (hereinafter, "Work") on the License Property, Licensee shall submit work plans to SANBAG for review and approval. Any such Work must be carried out pursuant to work plans approved in writing by SANBAG. In addition, Licensee shall provide SANBAG with at least 10 calendar days' written notice prior to commencement of any Work on the License Property or the Facility, except in cases of emergency, in which event Licensee shall notify SANBAG's representative personally or by phone prior to commencing any Work. Unless otherwise requested by SANBAG, upon completion of any Work, Licensee shall restore the SANBAG Property to its condition immediately preceding the commencement of such Work. 5, CONTRACTORS; APPROVAL AND INSURANCE Any contractors of Licensee performing Work on the Facility or the License Property shall first be approved in writing by SANBAG. With respect to such Work, Licensee shall, at its sole cost and expense, obtain and maintain in full force and effect throughout the term of such Work, insurance, as required by SANBAG, in the amounts and coverages specified on, and issued by insurance companies as described on, Exhibit "B". Additionally, Licensee shall cause any and all of its contractors and subcontractors which may (i) be involved with such Work, or (ii) may, for any reason, need to enter onto the License Property to obtain and maintain in full force and effect during the MT A License Agreement - SANBAG Version 013100, Revised \01001 2 San Bern Pub Works Mt View RRND007622 061301 101001 y Term of this Agreement, or throughout the term of such Work (as applicable), insurance, as required by SANBAG, in the amounts and coverages specified on, and issued by insurance companies as described on, Exhibit "B". SANBAG reserves the right, throughout the Term of this Agreement, to review and change the amount and type of insurance coverage it requires in connection with this Agreement or the Work to be performed on the License Property. 6. REIMBURSEMENT Licensee agrees to reimburse SAN BAG for all reasonable costs and expenses incurred by SANBAG in connection with Work on or maintenance of the License Property or the Facility, including, but not limited to, costs incurred by SANBAG in furnishing any materials or performing any labor, reviewing Licensee's Work plans and/or inspecting any Work, installing or removing protection beneath or along SANBAG's tracks, furnishing of watchmen, flagmen and inspectors as SANBAG deems necessary and such other items or acts as SANBAG in its sole discretion deems necessary to monitor or aid in compliance with this Agreement. 7. LIENS Licensee will fully and promptly pay for all materials joined or affixed to the Facility or SANBAG Property, and fully and promptly pay all persons who perform labor upon said Facility or SANBAG Property, Licensee shall not suffer or pennit to be filed or enforced against the SANBAG Property or the Facility, or any part thereof, any mechanics', materialmen's, contractors', or subcontractors' liens or stop notices arising from, or any claim for damage growing out of, any testing, investigation, maintenance or Work, or out of any other claim or demand of any kind. Licensee shall payor cause to be paid all such liens, claims or demands, including sums due with respect to stop notices, together with attorney's fees incurred by SANBAG with respect thereto, within ten (10) business days after notice thereof and shall indemnify, hold harmless and defend SANBAG from all obligations and claims made against SANBAG for the above described work, including attorney's fees. Licensee shall furnish evidence of payment upon request of SANBAG. Licensee may contest any lien, claim or demand by furnishing a statutory lien bond or equivalent with respect to stop notices to SANBAG in compliance with applicable California law. If Licensee does not discharge any mechanic's lien or stop notice for works perfonned for Licensee, SAN BAG shall have the right to discharge same (including by paying the claimant) and Licensee shall reimburse SANBAG for the cost of such discharge within ten (10) business days after billing. SANBAG reserves the right at any time to post and maintain on the SANBAG Property such notices as may be necessary to protect SAN BAG against liability for all such liens and claims. The provisions of this section shall survive the tennination of this Agreement. 8, MAINTENANCE AND REPAIR Licensee, at Licensee's sole expense, shall maintain the License Property and the Facility in a first-class condition during the Tenn of this Agreement and shall perform all maintenance and clean-up of the License Property and the Facility as necessary to keep the License Property and the Facility in good order and condition, to SANBAG's satisfaction. If any portion of the SANBAG Property, including improvements or fixtures, suffers damage by reason of the access to or use of the License Property, by Licensee, Licensee's Parties or by Licensee's partners, officers or directors, including but not limited to damage arising from any tests or investigations conducted upon the License Property, Licensee shall, at its own cost and expense, immediately repair all such damage and restore the SANBAG Property to as good a condition as before such cause of damage occurred. Repair of damage shall include, without limitation, regrading and resurfacing of any holes, ditches, indentations, mounds or other inclines created by any excavation by Licensee or Licensee's Parties. 9. LANDSCAPING If required by SANBAG, then Licensee, at its sole cost and expense, shall install barrier landscaping to shield the Facility from public view, SANBAG shall have the right to review and approve landscaping plans prior to installation. All landscaping work shall be done in accordance with the provisions of Section 4 above. 10. USE The License Property and the Facility shall be used only for the purposes specified in Item 2 of the Basic License Provisions and for such lawful purposes as may be directly incidental thereto. No change shall be made by Licensee in the use of the License Property, the Facility or the commodity or product being conveyed through the Facility (if any) without SANBAG's prior written approval. MT A License Agreement - SAN BAG Version 013100. Revised 101001 3 San Bern Pub Works Mt View RRNDO07622 061301 101001 y 11. ABANDONMENT Should Licensee at anytime abandon the use of the Facility or the License Property, or any part thereof, or fail at any time for a continuous period of ninety (90) days to use the same for the purposes contemplated herein, then this Agreement shall terminate to the extent of the portion so abandoned or discontinued, and in addition to any other rights or remedies, SANBAG shall immediately be entitled to exclusive possession and ownership of the portion so abandoned or discontinued, without the encumbrance of this Agreement. 12. BREACH Should Licensee breach, or fail to keep, observe or perform any agreement, covenant, term or condition on its part herein contained, then, in addition to any other available rights and remedies, SANBAG at its option may: (a) perform any necessary or appropriate corrective work at Licensee's expense, which Licensee agrees to pay to SANBAG upon demand, or (b) with or without written notice or demand, immediately terminate this Agreement and at any time thereafter, recover possession of the License Property or any part thereof, and expel and remove therefrom Licensee and any other person occupying the License Property by lawful means, and again repossess and enjoy the License Property and the Facility, without prejudice to any of the remedies that SANBAG may have under this Agreement, at law or equity by reason of Licensee's default or of such termination. 13. SURRENDER Upon termination of this Agreement, unless otherwise requested in writing by SANBAG prior to the date of termination, Licensee, at its own cost and expense, shall immediately remove the Facility and restore the SANBAG Property as nearly as possible to the same state and condition as existed prior to the construction, reconstruction or installation of said Facility. Should Licensee fail to comply with the requirements of the preceding sentence, SANBAG may at its option (i) perform the same at Licensee's expense, which costs Licensee agrees to pay to SANBAG on demand, or (ii) assume title and ownership of said Facility. No termination hereof shall release Licensee from any liability or obligation hereunder, whether of indemnity or otherwise, resulting from any acts, omissions or events happening prior to the date the Facility is removed and the SANBAG Property is restored. 14. INDEMNIFICATION Licensee, on behalf of itself and its successors and assigns, agrees to indemnify, defend (by counsel satisfactory to SANBAG), and hold harmless SANBAG and its subsidiaries, officers, directors, employees, agents, successors and assigns (individually and collectively, "Indemnitees"), to the maximum extent allowed by law, from and against all loss, liability, claims, demands, suits, liens, claims of lien, damages (including consequential damages), costs and expenses (including, without limitation, any fines, penalties, judgments, litigation expenses, and experts' and attorneys' fees), that are incurred by or asserted against Indemnitees arising out of or connected in any manner with (i) the acts or omissions to act of the Licensee, or its officers, directors, affiliates, Licensee's Parties or anyone directly or indirectly employed by or for whose acts Licensee is liable (collectively, "Personnel") or invitees of Licensee in connection with the SANBAG Property or arising from the presence upon or performance of activities by Licensee or its Personnel with respect to the SANBAG Property, (ii) bodily injury to or death of any person (including employees of Indemnitees) or damage to or loss of use of property resulting from such acts or omissions of Licensee or its Personnel, or (iii) non-performance or breach by Licensee or its Personnel of any term or condition of this Agreement, in each case whether occurring during the Term of this Agreement or thereafter. The foregoing indemnity shall be effective regardless of any negligence (whether active, passive, derivative, joint, concurring or comparative) on the part of Indemnitees, unless caused solely by the gross negligence or willful misconduct of Indemnitees; shall survive termination of this Agreement; and is in addition to any other rights or remedies which Indemnitees may have under the law or under this Agreement. Upon request of SANBAG, Licensee shall provide insurance coverage for possible claims or losses covered by the indemnification and defense provisions of this Agreement. Claims against the Indemnitees by Licensee or its Personnel shall not limit the Licensee's indemnification obligations hereunder in any way, whether or not such claims against Indemnitees may result in any MTA License Agreement - SAN BAG Version 013100, Revised ]01001 San Bern Pub Works Ml View RRNDQ07622 061301 101001 4 limitation on the amount or type of damages, compensation, or benefits payable by or for a Licensee or its Personnel under workers' compensation acts, disability benefit acts or other employee benefit acts or insurance. 15. ASSUMPTION OF RISK AND WAIVER To the maximum extent allowed by law, Licensee assumes any and all risk of loss, damage or injury of any kind to any person or property, including without limitation, the Facility, the SANBAG Property and any other property of, or under the control or custody of, Licensee, which is on or near the License Property. Licensee's assumption of risk shall include, without limitation, loss or damage caused by defects in any structure or improvement on the SANBAG Property, accident or fire or other casualty on the SANBAG Property, or electrical discharge, noise or vibration resulting from SANBAG's transit operations on or near the SANBAG Property. The term "SANBAG" as used in this section shall include: (i) any transit or rail-related company validly operating upon or over SANBAG's tracks or other property, and (ii) any other persons or companies employed, retained or engaged by SANBAG, Licensee, on behalf of itself and its Personnel (as defined in Section 14) as a material part of the consideration for this Agreement, hereby waives all claims and demands against SANBAG for any such loss, damage or injury of Licensee and/or its Personnel. In that connection, Licensee 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 by him must have materially affected his settlement with the debtor. The provisions of this section shall survive the termination of this Agreement. 16. INSURANCE Licensee, at its sole cost and expense, shall obtain and maintain in full force and effect during the Term of this Agreement insurance as required by SANBAG in the amounts and coverages specified and issued by insurance companies as described on Exhibi( tlB:. SANBAG reserves the right, throughout the Term of this Agreement, to review and change the amount and type of insurance coverage it requires in connection with this Agreement or the Work to be performed on the License Property. Prior to (i) entering the License Property or (ii) performing any Work or maintenance on the License Property, Licensee shall furnish SANBAG with insurance endorsements or certificates evidencing the existence, amounts and coverages of the insurance required to be maintained hereunder. In most instances, SANBAG does not allow self-insurance, however, if Licensee can demonstrate assets and retention funds meeting SANBAG's self-insurance requirements, SANBAG may permit Licensee to self-insure, provided, however that the right to self-insure with respect to any coverage required to be maintained hereunder may be granted or revoked by SANBAG at its sole and absolute discretion. SANBAG shall not be liable for the payment of any premiums or assessments for insurance required to be maintained by Licensee under this Agreement. 17. TESTS AND INSPECTIONS SANBAG shall have the right at anytime to inspect the License Property and the Facility so as to monitor compliance with this Agreement. If, in SANBAG's sole judgment, any installation on, or use or condition of the License Property may have an adverse effect on the SANBAG Property, adjacent property (whether or not owned by SANBAG) or SANBAG operations, SANBAG shall be permitted to conduct any tests or assessments, including but not limited to environmental assessments, of, on or about the License Property, as it determines to be necessary or useful to evaluate the condition of the License Property. Licensee shall cooperate with SANBAG in any tests or inspections deemed necessary by SANBAG. Licensee shall payor reimburse SANBAG, as appropriate, for all reasonable costs and expenses incurred due to the tests, inspections or any necessary corrective work and inspections thereafter. 18. HAZARDOUSrrOXIC MATERIALS USE AND INDEMNITY Licensee shall operate and maintain the License Property in compliance with all, and shall not cause or permit the License Property to be in violation of any federal, state or local environmental, health and/or safety-related laws, regulations, standards, decisions of the courts, permits or permit conditions, currently existing or as amended or adopted in the future which are or become applicable to Licensee or the License Property ("Environmental Laws"). Except for Hazardous Materials expressly approved by SANBAG in writing as shown on Exhibit "C", Licensee shall not cause or permit, or allow any of Licensee's Parties to cause or permit, any Hazardous Materials to be brought upon, stored, used. generated, treated or disposed of on or about the SANBAG Property, Any Hazardous Materials on the site shall be stored, used, generated and disposed of in accordance with all applicable Environmental Laws. As used MTA License Agreement SANBAG Version 013100, Revised 101001 5 SanBem Pub Works Mt View RRNDOO7622 061301101001 y herein, "Hazardous Materials" means any chemical, substance or material which is now or becomes in the future listed, defined or regulated in any manner by any Environmental Law based upon, directly or indirectly, its properties or effects. Licensee shall indemnify, defend (by counsel acceptable to SANBAG) and hold harmless the Indemnitees (as defined in Section 14) from and against all loss, liability, claim, damage, cost or expense (including without limitation, any fines, penalties, judgments, litigation expenses, attorneys' fees, and consulting, engineering, and construction fees and expenses) incurred by Indemnitees as a result of (a) Licensee's breach of any prohibition or provision of this section, or (b) any release of Hazardous Materials upon or from the Facility or the License Property or contamination of the SANBAG Property or adjacent property (i) which occurs due to the use and occupancy of the Facility or the SANBAG Property by Licensee or Licensee's Parties, or (ii) which is made worse due to the act or failure to act of Licensee or Licensee's Parties. The foregoing indemnity shall be effective regardless of any negligence (whether active, passive, derivative, joint, concurring or comparative) on the part of Indemnitees, unless caused solely by the gross negligence or willful misconduct of Indemnitees; shall survive termination of this Agreement; and is in addition to any other rights or remedies which Indemnitees may have under the law or under this Agreement. In addition, in the event of any release on or contamination of the License Property, Licensee, at its sole expense, shall promptly take all actions necessary to clean up the affected property (including the SANBAG Property and all affected adjacent property -- whether or not owned by SANBAG) and to return the affected property to the condition existing prior to such release or contamination, to the satisfaction of SANBAG and any governmental authorities having jurisdiction thereover. 19. UNDERGROUND STORAGE TANKS NEITHER LICENSEE NOR LICENSEE'S PARTIES SHALL INSTALL OR USE ANY UNDERGROUND STORAGE TANKS ON THE LICENSE PROPERTY UNLESS SPECIFICALLY APPROVED IN ADVANCE IN WRITING BY SAN BAG. WHICH APPROVAL MAY BE WITHHELD IN SANBAG'S SOLE DISCRETION. At SAN BAG's option, upon the termination of this Agreement at any time and for any reason, Licensee shall, prior to the effective date of such termination, remove and close all underground storage tanks and related equipment and clean up and remove all Hazardous Materials in, on, under and about the SANBAG Property, in accordance with the requirements of all Environmental Laws and to the satisfaction of SANBAG and any governmental authorities having jurisdiction thereover, and deliver to SANBAG a copy of a certificate of closure issued for such tanks by the appropriate governmental authority. 20. SUBORDINATE RIGHTS This Agreement is subject and subordinate to the prior and continuing right and obligation of SANBAG, its successors and assigns, to use the SANBAG Property in the exercise of its powers and in the performance of its duties, including those as a public transportation body. Accordingly, there is reserved and retained unto SANBAG, its successors, assigns and permittees, the right to construct, reconstruct, maintain and use existing and future rail tracks, facilities and appurtenances and existing and future transportation, communication, pipeline and other facilities and appurtenances in, upon, over, under, across and along the SANBAG Property, and in connection therewith the right to grant and convey to others, rights and interests to the SANBAG Property on the License Property and in the vicinity of Facility. This Agreement is subject to all licenses, leases, easements, restrictions, conditions, covenants, encumbrances, liens, claims and other matters of title ("title exceptions") which may affect the SANBAG Property now or hereafter, and the words "grant" or "convey" as used herein shall not be construed as a covenant against the existence of any such title exceptions. 21. COMPLIANCE WITH LAWS Licensee shall comply with all applicable federal, state and local laws, regulations, rules and orders in its work on, or maintenance, inspection, testing or use of, the Facility and the SANBAG Property and shall furnish satisfactory evidence of such compliance promptly upon request of SANBAG. SANBAG may enter the License Property to inspect the Facility at any time, upon provision of reasonable notice of inspection to Licensee. Licensee shall obtain all required permits or licenses required by any governmental authority for its use of the License Property and the Facility, at its sole cost and expense. MT A License Agreemenl- SAN BAG Version 013100, Revised 101001 San Bern Pub Works MI View RRNDOO7622 061301 101001 6 22. CONDEMNATION In the event all or any portion of the License Property shall be taken or condemned for public use (including conveyance by deed in lieu of or in settlement of condemnation proceedings), Licensee shall receive compensation (if any) only for the taking and damage to the Facility. Any other compensation or damages arising out of such taking or condemnation awarded to Licensee are hereby assigned by Licensee to SANBAG. 23. MARKERS Project markers in fonn and size satisfactory to SANBAG, identifying the Facility and its owners, will be installed and constantly maintained by and at the expense of Licensee at such locations as SANBAG shall designate. Such markers shall be relocated or removed upon request of SANBAG without expense to SANBAG. Absence of markers in or about SANBAG Property does not constitute a warranty by SANBAG of the absence of subsurface installations. 24. GENERAL PROVISIONS 24.1 Notices. All notices and demands which either party is required to or desires to give to the other shall be made in writing by personal delivery, by express courier service or by certified mail postage prepaid, and addressed to such party at its address set forth in the Basic License Provisions. Either party may change its address for the receipt of notice by giving written notice thereof to the other party in the manner herein provided. Notices shall be effective only upon receipt by the party to whom notice or demand is given. 24.2 Non-Exclusive License. The license granted herein is not exclusive and SAN BAG specifically reserves the right to grant other licenses within the License Property. 24,3 Governing Law. This Agreement shall be governed by the laws of the State of California. 24.4 Severabilitv. If any term, covenant, condition or provision of this Agreement, or the application thereof to any person or circumstance, shall to any extent be held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the terms, covenants, conditions, or provisions of this Agreement, or the application thereof to any person or circumstance, shall remain in full force and effect and shall in no way be affected, impaired or invalidated thereby. 24.5 Interest on Past-due Obligations. Except as expressly herein provided, any amount due to SAN BAG that is not paid when due shall bear interest, from the date due, at the maximum rate then allowable by law. Such interest will be due SANBAG as it accrues. Payment of such interest shall not excuse or cure any default by Licensee under this Agreement, provided, however, that interest shall not be payable on late charges incurred by Licensee. 24.6 Captions. The captions included in this Agreement are for convenience only and in no way define, limit, or otherwise describe the scope or intent of this Agreement or any provision hereof, or in any way affect the interpretation of this Agreement. 24.7 Survival of Obligations. All obligations of Licensee hereunder not fully performed as of the expiration or earlier termination of the Term of this Agreement shall survive the expiration or earlier termination of this Agreement, including without limitation, all payment obligations with respect to License Fees and all obligations concerning the condition of the SANBAG Property and the Facility, 24.8 Waiver of Covenants or Conditions. The waiver by one party of the performance of any covenant or condition under this Agreement shall not invalidate this Agreement nor shall it be considered a waiver by it of any other covenant or condition under this Agreement. 24.9 Effective DatelNonbinding Offer. Submission of this License for examination or signature by Licensee does not constitute an offer or option for license, and it is not effective as a license or otherwise until executed and delivered by both SANBAG and Licensee. Each individual executing this License on behalf of SANBAG or Licensee represents and warrants to the other party that he or she is authorized to do so. MTA License Agreement - SANBAG Version 013100, Revised 101001 7 San Bern Pub Works MI View RRNDOO7622 061301 101001 y 24.10 Amendment. This Agreement may be amended at any time by the written agreement of SANBAG and Licensee. All amendments, changes, revisions, and discharges of this Agreement in whole or in part, and from time to time, shall be binding upon the parties despite any lack of legal consideration, so long as the same shall be in writing and executed by the parties hereto. 24.11 Assil!nment. This Agreement and the license granted herein are personal to the Licensee. Licensee shall not assign or transfer (whether voluntary or involuntary) this Agreement in whole or in part, or permit any other person or entity to use the rights or privileges hereby conveyed, without the prior written consent of SANBAG, which may be withheld in SANBAG's sole and absolute discretion, and any attempted act in violation of the foregoing shall be void and without effect and give SANBAG the right to immediately terminate this Agreement. 24.12 Attornevs' Fees. In any judicial or arbitration proceeding involving performance under this Agreement, or default or breach thereof, the prevailing party shall be entitled to its reasonable attorney's fees and costs. 24.13 Nondiscrimination. Licensee certifies and agrees that all persons employed thereby and/or the affiliates, subsidiaries, or holding companies thereof and any contractors retained thereby with respect to the License Property are and shall be treated equally without regard to or because of race, religion, ancestry, national origin, or sex, and in compliance with all federal and state laws prohibiting discrimination in employment, including but not limited to the Civil Rights Act of 1964: the Unruh Civil Rights Act; the Cartwright Act; and the California Fair Employment Practices Act. 24.14 Further Acts. Licensee agrees to perform any further acts and to execute and deliver in recordable form any documents which may be reasonably necessary to carry out the provisions of this Agreement, including, at SAN BAG's sole discretion, the relocation of the Facility and the license granted hereby. 24.15 Termination for Public Proiect. Licensee hereby expressly recognizes and agrees that j' the Premises are located on SANBAG property that may be developed for public projects and programs which may e implemented by SANBAG or other public agencies, such as, but not limited to: rail and bus transitways, bikew s, walkways, beautification projects and other public uses (collectively "Project"), and that Licensee's use of the Premi 'es under this License is an interim use. Accordingly, as a condition to entering into this License, SANBAG expressly 1/ reserves the right to terminate the License for any of such public Project. Licensee expressly acknowledges and agrees (,.t that: (I) SANBAG may terminate this license for any public project: (2) Licensee will NOT oppose any public Project when planned or implemented on or adjacent to the Premises; and (3) in the event SANBAG terminates this License and requires Licensee to vacate the Premises for any -public Project, Licensee (a) shall not be entitled to receive any relocation assistance, moving expenses, goodwill or other payments under the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, as amended, 42 U.S.c. 14601 et seq. and/or the California Relocation Assistance Law, as amended, California Government Code 17260 et seq; and (b) shall not be entitled to any compensation under the eminent domain law, as a result of such termination and vacation of the Premises. 24.16 Time of Essence. Time is of the essence. 24.17 No Recordinl!. Licensee shall not record or permit to be recorded in the official records of the county where the License Property is located, this Agreement, any memorandum of this Agreement or any other document giving notice of the existence of this Agreement or the license granted hereby. 24.18 Revocable License. Licensee agrees that notwithstanding the improvements made by Licensee to the License Property or other sums expended by Licensee in furtherance of this Agreement, the license granted herein is revocable by SANBAG in accordance with the terms of this Agreement. 24.19 Entire Allfeement: Amendments. This Agreement and the Exhibits hereto constitute the entire agreement between the Parties with respect to the subject matter hereof and supersede all prior verbal or written agreements and understandings between the Parties with respect to the items set forth herein. This Agreement may be amended at any time by the written agreement of SANBAG and Licensee. All amendments, changes, revisions, and discharges of this Agreement in whole or in part, and from time to time, shall be binding upon the parties despite any lack of legal consideration, so long as the same shall be in writing and executed by the parties hereto. 24.20 Additional Provisions. Those additional provisions set forth in Exhibit "Dn, if any, are hereby incorporated by this reference as if fully set forth herein. MT A License Agreement - SANBAG Version 013100, Revised 101001 8 San Bern Pub Works Mt View RRNDOO7622 061301 101001 Y SAN BAG PROPERTY LINE s: o c Z -I )> - Z < - m :E N b w- -II ~& ~ ~&/O ~ ~C ". ~~~ ~ 'If- ~, MP 5.16 ES 270+55 S ~ , <'v. QO~ .. ~~~ .. ~J,~ ~ SANBAG PROPERTY LINE " ~ ::0 o 100- o 100 200 r-- scale I feet " , REDLANDS RND2B Engineers Station Community 270+55 County SAN BERNARDINO Nearest Cross 51. 5.16 City SAN BERNARDINO Thomas Guide Grids EXHIBIT 'A' APN No. 292-03-43 Lessee/licensee CITY OF SAN BERNARDINO DEPT. OF PUBLIC WORKS Map Reference Mile Post MT. VIEW 60705 Use STORM Legend DRAIN IMPROV. San Bernardino Associated Governments 472 North Arrowhead Ave. San Bernardino, CA 92401-1421 MTA File No. RRND007622 Scale Date 1"=100' MLS 6/13/01 Exhibit "B" INSURANCE REQUIREMENTS FOR LEASES, LICENSES, AND PERMITS Lessee, Licensee, or Permittee shall procure and maintain, for the duration of the contract, insurance against claims for injuries to persons or damages to property which may arise from, or in connection with, the use of SANBAG and MT A property hereunder by the Lessee, Licensee, or Permittee, his agents, representatives, employees or subcontractors, Minimum Scope of Insurance (Check all applicable boxes) Coverage shall be at least as broad as: ~ ~ Insurance Services Office Commercial General Liability coverage (occurrence form CG 0001), Insurance Services Office Form No, CA 0001 (Ed, 1/87) covering Automobile Liability, code 1 ( any auto), Worker's Compensation insurance as required by the State of California and Employer's Liability Insurance. Course of Construction insurance form providing coverage for "all risks" of loss, Property insurance against all risks of loss to any tenant improvements or betterments, Insurance Services Office Railroad Protective Liability Contractor's Pollution Liability with coverage for: ~ bodily injury, sickness, disease, mental anguish or shock sustained by any person, including death; property damage including physical injury to or destruction of tangible rroperty including the resulting loss of use thereof, clean-up costs, and the loss of use 0 tangible property that has not been physically injured or destroyed; defense, including costs, charges and expenses incurred in the investigation, adjustment or defense of claims for such compensatory damages; and losses caused by pollution conditions that arise from the operations of the contractor described under the scope of services of this contract. Minimum Limits ofInsurance (Check all applicable boxes) a, b, c, d, Lessee, Licensee, or Permittee shall maintain limits no less than: ~ ~ General Liability: $2,000.000 per occurrence for bodily inJury, personal injury and property damage, If Commercial General Liability Insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit. Automobile Liability: $1,000,000 per accident for bodily injury and property damage, Employer's Liability: $1,000,000 per accident for bodily injury or disease, Course of Construction: Completed value of the project. Property Insurance: Full replacement cost with no coinsurance penalty provision, Railroad Protective Liability: $2,000,000 per occurrence, Aggregate limit shall apply sqJarately to this project/location or the aggregate limit shall be twice the required per occurrence limit Contractors Pollution Liability: $1,000,000 per occurrence $2,000,000 annual aggregate, ~ D neductibIes and Self-Insured Retentions Any deductibles or self-insured retentions must be declared to and approved by SANBAG and MTA, At the option of SANBAG and MT A, either: the insurer shall reduce or eliminate such deductibles or self- insured retentions as respects SANBAG and MT A, its officials and employees; or the Lessee, Licensee, or Permittee shall procure a bond guaranteeing payment of losses, and related investigations, claim administration and defense expenses, MT A License Agreement - SANBAG Version 013100, Revised 101001 San Bern Pub Works Mt View RRNDOO7622 061301 101001 10 y Exhibit "B" Other Insurance Provisions The general liability and automobile liability policies are to contain, or be endorsed to contain, the following provisions: 1, SANBAG and MT A, its subsidiaries, officials and employees are to be covered as insureds as respects: liability arising out of activities performed by or on behalf of the Lessee, Licensee, or Permittee; products and completed operations of the Lessee, Licensee, or Permittee; premises owned, occupied or used by the Lessee, Licensee, or Permittee; and automobiles owned, leased, hired or borrowed by the Lessee, Licensee, or Permittee, The coverage shall contain no special limitations on the scope of protection afforded to SANBAG and MT A, its subsidiaries, officials and employees, 2, For any claims related to this project, the Lessee, Licensee, or Permittee's insurance coverage shall be primary insurance as respects SANBAG and MT A, its subsidiaries, officials and employees, Any lllsurance or self-insurance maintained by SANBAG and MT A, its subsidiaries, officials and employees shall be excess of the contractor's insurance and shall not contribute with it. 3, Any failure to comply with reporting or other provisions of the policies including breaches of warranties shall not affect coverage provided to SANBAG and MT A, its subsidiaries, officials and employees, 4, The Lessee, Licensee, or Permittee'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, 5, Each insurance policy required by this clause shall be endorsed to state that coverage shall not be su~ended, voided, canceled by eIther a party, or reduced in coverage or in limits, except after thirty (30 days' prior written notice by certified mail, return receipt requested, has been given to SANBAG an MT A, 6, Workers' Compensation and Employer's Liability policies shall contain the inclusion of the SANBAG and MT A, its Subsidiaries, officials and employees as additional insured, or provide a waiver of subrogation. Course of construction policies shall contain the following provisions: 1, SANBAG and MT A shall be named as loss payee, 2, The insurer shall waive all rights subrogation against SANBAG and MT A. Acceptability of Insurers Insurance is to be placed with insurers with a current A,M, Best's rating of no less than A: VII, unless otherwise approved by SANBAG and MTA, Verification of Coveral!e Lessee, Licensee, or Permittee shall furnish SANBAG and MTA with original endorsements and certificates of insurance evidencing coverage required by this clause, All documents are to be signed by a person authorized by that insurer to bind coverage on its behalf. All documents are to be received and approved by the SANBAG and MTA before work commences, As an alternative, the Lessee, Licensee, or Permittee may provide complete, certified COpies of all required insurance policies, including endorsements effecting the coverage reqUIred by these speCIfications, Contractors and Subcontractors Lessee, Licensee, or Permittee shall include all contractors and subcontractors as insureds under its policies or require certificates and endorsements for each contractor and subcontractor, All coverages for contractors and subcontractors shall be subject to all of the requirements stated herein, The administration of insurance compliance of contractors and subcontractors shall be subject to audit review by SANBAG and MT A. MTA License Agreement. SAN BAG Version 013100, Revised 101001 11 San Bern Pub Works Mt View RRNDO07622 061301 101001 y Exhibit "C" Permitted Hazardous Materials No hazardous materials are permitted to be used or stored on License Property. MTA License Agreement - SANBAG Version 013100, Revised 101001 12 SanBem Pub Works Mt View RRNOOO7622 061301 101001 y ~. Exhibit "D" Additional Provisions 1. Importation of Soil/Fill Dirt. Licensee shall not bring upon or use any Import Soil on the Premises in conjunction with any purposes allowed under this Agreement, until said Import Soil has been laboratory tested by a certified hazardous waste testim! laboratorv and the test results have been approved by MTA's Environmental Consultant. Additionally, any soil currently existing on the Premises may not be spread on the Premises unless and until it is characterized as Clean Soil to the reasonable satisfaction of MTA's Environmental Consultant. 2. Maintenance of Premises. Licensee shall keep the Premises free and clear of weeds, trash, vegetation, unauthorized vehicle parking, graffiti and occupancy by transients/homeless persons or individuals, Licensee shall be fully responsible for ALL maintenance and maintenance that is required or necessary in connection with Licensee's use of Premises. 3. Protection of Undere:round and Abovee:round Installations. Licensee shall ensure that it and Licensee's Parties protect, from and against any and all damage, all underground and aboveground installations and improvements, such as pipes, fiber optic lines and wires, which may be impacted by any work or any use of the Premises by Licensee. 4. Improvements. Both Licensee and MTA acknowledge that the Premises is leased in "AS IS" condition and any track removal, grading, paving and fencing as may be necessary or required to meet Licensee's needs will be the sole responsibility of the Licensee. No permanent structures may be constructed on the premises without MT A's prior written approvaL Licensee will be responsible for the removal of all permitted improvements upon termination of Lease. 5. Utilities. Licensee shall pay for any and all utilities for its benefit, security and use. 6. Warranties. The MTA makes no warranties as to the suitability of the location for Licensee's intended use as to zoning, visibility, traffic count or any other factors which may cause Licensee to want to lease the premises. 7. Zonine: or Permittine:. Any permits, inspection fees, or costs associated with the use or maintenance of the Premise by any governmental agency, department, or organization, or any labor expenses for the installation or maintenance of any permitted improvements are the Licensee's sole responsibility. Copies of permits are to be readily available for inspection by MT A personnel. 9. Sie:nae:e, NO SIGNS PERMITTED on, or along the perimeter of the Premises unless such signs were requested and approved under your original proposal and covered by the required insurance. MTA MTA License Agreement- SANBAG Version 013100, Revised 10]001 San Bern Pub Works MI View RRNDOO7622 061301 101001 13