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HomeMy WebLinkAboutResolution 2017-131 N.C.S. 09/11/2017Resolution No. 2017 -131 N.C.S. of the City of Petaluma, California RESOLUTION AUTHORIZING THE CITY MANAGER TO ENTER INTO A REVOCABLE LICENSE AGREEMENT WITH SONOMA MARIN AREA RAIL TRANSIT (SMART) FOR THE BUS STOP SHELTER ON EAST D STREET NEAR LAKEVILLE STREET WHEREAS, Petaluma Transit has planned bus routes that will provide first and last mile service to and from the SMART trains every 30 minutes during peak commute hours; and WHEREAS, for passenger convenience and acceptance, the shuttle bus stop should be as near as possible to the SMART Station platform to minimize time buses wait for passengers traversing to and from the SMART station, thereby limiting the areas of town served by the shuttles; and should include a bus shelter; and WHEREAS, the Copeland Transit Mall would require a passenger to walls to either D Street or E, Washington Street, then a block to Copeland Street and another block to the Transit Mall, a distance too long for efficient shuttle operation; and WHEREAS, a project to place a bus turnout and stop on D Street just west of the SMART Station, a distance of only 200 feet from the SMART platform, has been developed to conveniently serve transferring passengers and minimize shuttle bus wait times; and WHEREAS, an agreement to construct the bus shelter on SMART property is required because the proposed bus stop shelter will occupy a minor area of SMART property, and is addressed in the proposed revocable license agreement with SMART included as Exhibit A; and WHEREAS, SMART has indicated that they will grant the revocable license agreement to the City for construction of the bus shelter in an effort to cooperate with the City to assure a convenient and acceptable facility for SMART and Petaluma Transit riders, NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Petaluma hereby authorizes and directs the City Manager to enter into a revocable license Resolution No, 2017 -131 N.C.S. Page l agreement with SMART on behalf of the City of Petaluma for the right to construct and operate a bus stop shelter on SMART property at the location identified by the project, Under the power and authority conferred upon this Council by the Charter of said City. Resolution No, 2017 -131 N.C.S. Page 2 Exhibit A to Resolution REVOCABLE LICENSE AGREEMENT This License Agreement ( "License "), is entered into as of ( "Effective Date "), by and between the Sonoma -Marin Area Rail Transit District, a public agency "Licensor" or "SMART "), and the Licensor of Petaluma, a charter Licensor ( "Licensee "). RECITALS A. Licensor is the owner of that certain real property identified by Sonoma County Assessor's Parcel Number 007 -131 -003, which is located in the vicinity of and south and west of the intersection of East D Street and Lakeville Street in the City of Petaluma, County of Sonoma, State of California, described as follows (the "Property"): That certain parcel of land described and conveyed in the Grant Deed from Union Pacific Railroad Corporation to the Northwestern Pacific Railroad Authority, dated and recorded February 13, 1998, as Document 1998 - 0014061, Official Records of Sonoma County, California. B. Licensee desires to obtain a license from Licensor to use a portion of the Property for a bus pull -out. Licensee will construct a pull -out pad, sidewalk and bus shelter, and appurtenant and related utilities and support structures, as shown on Exhibit "A" attached hereto and incorporated herein by this reference ( "Facility "). C. Licensee is willing to assume the maintenance and repair of the Facility upon completion of construction. D. Licensor is willing to grant a license to Licensee on the terms and conditions hereinafter set forth. FOR VALUABLE CONSIDERATION, the receipt of which is acknowledged, the parties agree as follows: 1. GRANT OF LICENSE. Licensor grants to Licensee, subject to the conditions and covenants of this License, a revocable license for the purpose of constructing, operating, maintaining and repairing the Facility, together with the necessary rights of ingress and egress over the Property for these purposes, in the location described and shown in Exhibits "A" and "B ". No other use of the Property is permitted hereunder. 2. NONEXCLUSIVENESS OF LICENSE. This License is nonexclusive. Licensor shall continue to control the Property, including, without limitation, the right to issue additional leases, sub - leases, permits and licenses. 3. PRIOR RIGHTS. This grant is made subject and subordinate to the prior and continuing right and obligation of Licensor, its successors and assigns, to use the Property in the performance of its transportation obligations. There is reserved unto Licensor, its successors and assigns, the right to construct, reconstruct, maintain, operate and use existing and future transportation, communication, railroad track and pipeline Resolution No. 2017 -131 N.C.S. Page 3 facilities and appurtenances in, upon, over, under, across and along the Property. 4. TERM OF LICENSE. Subject to Section 23 "Conditions of Effectiveness ", the term of this License shall commence on the Effective date and shall continue until it is terminated. 5. LICENSE FEE Upon execution of this License, Licensee shall pay Licensor an annual license fee of $0.00. 6. TERMINATION OF LICENSE. This license shall be terminated upon one of the following occurrences, whichever is earliest: a. Notice. Either party may terminate this License by giving the non- terminating party at least ninety (90) calendar days advance written notice. b. Relocation. Licensor is required to remove or relocate the Facility pursuant to local, state or federal law, statutes or regulations, or pursuant to an order, or requirement of any of the Licensee's regulatory authorities, including but not limited to the California Public Utilities Commission ( "CPUC "), the Federal Railroad Authority "FRA "), and the Surface Transportation Board ( "STB "). C. Abandonment. The License shall be deemed terminated upon Licensee's discontinuance of the use of the Facility for one continuous year or abandonment and removal of the Facility. In removing the Facility from Property, Licensee shall restore Property and all existing improvements thereon as required below. d. Default by Licensee. If Licensee defaults with respect to any obligation, covenant or condition of this License and fails to correct the default within n i n e t y (90) days after receipt of notice from Licensor to do so, Licensor may immediately terminate this License by notice to Licensee. However, in the event the time necessary to correct any default exceeds ninety (90) days, the License shall not be terminated by Licensor if Licensee has initiated good -faith efforts to correct the default within ninety (90) days after receipt of notice of the default from the Licensor, and diligently prosecutes correction of the default until remedied. e. Property Restoration. Upon termination of the License, Licensee shall, at its sole cost and within ninety (90) days after the date of the notice of termination, or within ninety (90) days after the date the license is deemed terminated, remove the Facility from the Property and restore the Property and all existing improvements thereon to their condition as of the date Licensee entered the Property to begin construction of the Facility. If Licensee fails to remove the Facility and restore the Property, Licensor may perform the work, at the sole cost and expense of the Licensee, which expense Licensee agrees to pay to Licensor upon demand. f. Survival of Indemnity. Licensee's indemnity obligations set for in Sections 11 "Hazardous Materials ", 12 "Assumption of Risk" and 13 "Indemnity ", below, shall survive termination of this License. 7. LAPSE OF AGREEMENT. The rights granted by this License to Licensee shall lapse and become void if the construction of the Facility is not commenced within one year of the Effective Date. Resolution No. 2017 -131 N.C.S. Page 4 8. WORKING PROCEDURES, REPAIR AND MAINTENANCE. a. Cost of Work. Licensee shall bear the entire cost and expense of permitting, constructing, operating, maintaining and repairing the Facility on the Property. b. N_on- Interference With Licensor Operations. Licensee agrees that all work upon or in connection with the Facility shall be done at such times and in such manner as not to interfere in any way whatsoever with the operations of the Licensor, its tenants or licensees. C. Licensor Approval of Work Plans. The plans for constructing the Facility shall be subject to the approval of Licensor, with such approval not being unreasonably withheld. Approval by Licensor shall not constitute a warranty by Licensor that such plans conform with applicable federal, state and /or local laws, codes and regulations. d. Licensee to Obtain Right of Entry from Licensor for Work. Licensee agrees to obtain from Licensor a Right -of -Entry Permit to enter upon the Property for the performance of any work. Licensee may designate a contractor to perform such work, in which case the contractor shall also obtain a Right -of -Entry Permit from Licensor to enter upon the Property. Licensor shall not unreasonably deny a Right -of -Entry Permit. In the event of emergency, Licensee or Licensee's contractor may be permitted right -of -entry upon notification of Licensor and any operator of any freight or passenger rail service ( "Operator "), subject to the conditions of this Section 6. e. Advance Notice of Work. Licensee agrees to give Licensor and Operator ten (10) calendar days' written notice prior to commencement of any work on the Facility, except emergency repairs, in which case, Licensee shall notify Licensor's authorized representative by telephone. f. Work Performance Standards. All work by Licensee upon the Property shall be performed in a good and workman -like manner satisfactory to Licensor, and shall comply, but not be limited to, the following work standards: 1) Underground Facilities. Prior to ANY excavation or drilling activity, Licensee shall explore the existence of pipelines or other structures beneath the Property, with hand tools to a depth of at least eight feet (8') below the surface of the ground, or, at Licensee's option, use suitable detection equipment prior to drilling or excavating with mechanized equipment. Absence of markers does not constitute a warranty by Licensor of no subsurface installations. It shall be Licensee's sole responsibility to determine the existence of any underground facilities. 2) Open Holes. Any open holes shall be satisfactorily covered at all times when Licensee's forces are not physically working in the actual vicinity. Upon completion of work, all holes will be filled in to meet the surrounding ground level with clean, compacted, earthen material and the Property left in a neat and safe condition reasonably satisfactory to Licensor. 3) No Track Crossing Permitted. Licensee shall not be permitted to Resolution No. 2017 -131 N.C.S. Page 5 cross Licensor's tracks located on or adjacent to the Property to gain access to and egress from the Facility location. Access shall be only by use of designated public streets or crossings. 4) Compliance with Licensor and Operator Instructions for Work. Licensee shall comply with the regulations of Licensor and Operator, and the instructions of either through their representatives, relating to the proper manner of protecting the tracks, pipelines, wire lines, signals and all other property at or near the Facility, the traffic moving on such tracks, and the removal of tools, equipment and materials. 5) Protective Measures. Licensee shall take protective measures necessary to keep Licensor's facilities, including track ballast, free of sand or debris resulting from its operations. 6) Traffic Flow. Licensee shall provide all barriers, directions, signage and other forms of notice to the public to assure the smooth and uninterrupted flow of traffic around the Property during construction and operation of the Facility. 7) Storage of Material and Equipment. Licensee shall not place or store any material or park any equipment, when not in use, closer to the center of the nearest railroad track than permitted by the following permanent clearances; 25' -0" horizontally from the center line of the track; and 22' -6" vertically above the top of the rail. The placement of piles, forms, bracing, shoring falsework or other construction supports shall be in accordance with the current California Department of Transportation Trenching and Shoring Manual, Appendix C. 8) Testing. Licensee shall cooperate with Licensor in malting any tests Licensor requires of any installation or condition which, in Licensor's reasonable judgment, may have an adverse effect on any of the facilities of Licensor. All costs for such tests, or incurred by reason of such tests, and any alterations required as a result of such tests, shall be borne by Licensee. 9) Notice of Completion. Licensee shall notify Licensor of the date the work is completed. Upon completion of the work on the Property, Licensee shall promptly remove all tools, equipment and material placed thereon by Licensee or its agents. 10) Restoration of the Property. Except for the construction and improvements authorized herein, Licensee shall, upon completion of construction, restore the Property to the same state and condition as when Licensee entered thereon, and shall leave the Property in a clean and presentable condition. 9. WORK AT COST OF LICENSEE. a. Labor and Materials. Licensee shall fully pay for all materials joined or affixed to the Property, and shall pay in full all persons who perform labor on the Property. Resolution No. 2017 -131 N.C.S. Page 6 b. Liens. As Licensor is a public entity, its Property is not subject to mechanic's or materialman's liens, and nothing in this License shall be construed to make the Property subject to such liens. However, if any such liens are filed, Licensee shall immediately cause them to be removed at Licensee's own expense, and shall pay any judgment which may be entered. Should Licensee fail neglect or refuse to do so, Licensor, after forty -eight (48) hours prior notice to Licensee, shall have the right to pay any amount required to release any such liens, or to defend any action brought, and to pay any judgment entered. Licensee shall be liable to Licensor for all costs, damages, reasonable fees, and any amounts expended in defending any proceedings or in the payment of any of said liens or any judgment. Licensor- may post and maintain upon the Property notices of non - responsibility as provided by law. C. Licensor Costs. Licensee agrees to reimburse Licensor for the cost and expense to Licensor of furnishing any materials or performing any labor in connection with the construction and maintenance or removal of the Facility, including but not limited to, installation and removal of false work and other protection beneath or along the railroad tracks, and the furnishing or such security persons, flaggers and inspectors as Licensor deems necessary. Prior to incurring any cost or expense, Licensor shall reasonably notify Licensee of the same. Said reimbursement shall be paid by Licensee to Licensor within thirty (30) days after presentation of a bill. 10. MAINTENANCE OF FACILITY. Licensee agrees to keep the Facility and the Property in good and safe condition, free from waste, so far as affected by Licensee's operations, to the reasonable satisfaction of Licensor. If Licensee fails to keep the Property and the Facility in a good and safe condition, free from waste, then Licensor may perform the necessary work at the expense of the Licensee, which expense Licensee agrees to pay to Licensor upon demand. Additionally, Licensor may terminate this License pursuant to Section 6 "Termination of License ", above, without limiting its remedies. 11. HAZARDOUS MATERIALS. a. No hazardous material on the Property. Other than minor amounts of materials necessary for the work to be performed on the Property, no hazardous materials shall be handled at any time upon the Property. b. Leakage of Hazardous Material. In the event of leakage or spillage from the Facility or any vehicle in the control or custody of Licensee or any contractor or agent for Licensee, Licensee shall, at its own expense, promptly clean Licensor's Property as to such leakage only, to the satisfaction of Licensor and any public agency or body having jurisdiction in the matter. Any expense of required compliance with federal, state or local environmental regulations incurred by Licensor or Licensee as a result of any such leakage or breach of this section, shall be borne by Licensee, including any fines and judgments levied against Licensor or the Property. C. Hold Harmless. Licensee shall indemnify, hold harmless and defend with counsel reasonably satisfactory to licensor, the Licensor, its successors and assigns, any railroad company operating on the right -of -way, and their respective Resolution No. 2017 -131 N.C.S. Page 7 directors, officers, employees and agents, against any and all liability, cost and expense, including, without limitation, any fines, penalties, judgments, litigation costs, attorney' fees, and consulting, engineering and construction costs, incurred by licensor as a result of Licensee's breach of this section, or as a result of any such leakage as described above, regardless of whether such liability, cost or expense arises during or after the term of this License. This indemnity shall survive termination of this License. d. Hazardous Materials Defined. For purposes of this License, "Hazardous Materials" means any substance or material which, because of its quantity, concentration or physical or chemical characteristics, has at any time or now poses, or is hereafter deemed by any federal, state or local government authority to pose a present or potential hazard or threat to public health, welfare, or the environment, or which is regulated based on such potentially hazardous effects. The term "Hazardous Materials" shall include, without limitation, any material or substance defined as a "hazardous" or "toxic" substance or "waste ", and any pollutant or contaminant regulated under the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended (42 U.S.C., Sections 9601, et seq. (1980)) ( "CERCLA "), the Resource Conservation and Recovery Act (42 U.S.C., Sections 9601, et seq. (1976)) ( "RCRA ") or pursuant to Section 25316 of the California Health and Safety Code; any material listed pursuant to Section 25140 of the California Health and Safety Code; any man- made asbestos and asbestos containing materials; and any petroleum, including without limitation, crude oil or any fraction thereof, natural gas or natural gas liquids. 12. ASSUMPTION OF RISK. a. Licensor's Facilities and Operations. Any damage to Licensor's facilities and /or operations resulting from Licensee's operations will be remedied, repaired or replaced by Licensor, at Licensee's sole cost and expense, which Licensee shall pay to Licensor promptly upon demand. b. Licensee's Facilities and Operations. Licensee shall assume all risk of damage to the Facility and any other property of the Licensee, or any property under the control or custody of the Licensee, while upon or near the Property of Licensor, incident to the construction or maintenance of the Facility, which is caused by or contributed to in any way by the construction, operation, maintenance or present of Licensor's operations on the Property. However, such assumption by Licensee shall not include any damage caused by the active negligence and /or willful misconduct of Licensor, its agents or employees. Licensee releases Licensor from any liability, including claims for damages or extra compensation, arising from construction delays due to Licensor's transportation operations. 13. INDEMNITY. Licensee shall, to the extent arising out of the negligence of Licensee, release, defend (with counsel reasonably satisfactory to Licensor) and indemnify Licensor, its successors and assigns, any railroad company operating on the Property, and their respective directors, officers, employees and agents (collectively "Indemnitees ") from and against all liability, cost and expense for loss of, or damage to, property and for injuries to, or death of, any person (including but not limited to the property and employees of each party) when arising out of or resulting from the use of Resolution No, 2017 -131 N.C,S. Page 8 the Property by Licensee, its agents, employees, contractors, subcontractors or invitees, or Licensee's breach of these provisions. The duty of Licensee to indemnify and save harmless the indemnitees includes the duties to defend as set forth in Section 2778 of the California Civil Code. It is the express intent of the parties under this Section 11 that Licensee will indemnify and hold harmless the Indemnitees from any and all claims, suits, or actions arising from any cause whatsoever as set forth above, other than the active negligence, willful misconduct or criminal acts of the Indemnitees. This indemnity shall survive termination of this License. It is the intention of the parties that, should any term of this indemnity provision be found to be void or unenforceable, the remainder of the provision shall remain in full force and effect. 14. INSURANCE. Prior to entry upon the Property, Licensee shall provide Licensor with satisfactory evidence, as defined below, that Licensee is insured in accordance with the following, which insurance shall remain in effect throughout the term of this License: a. Workers' Compensation and Employers' Liability Insurance. Licensee shall procure and maintain Worker' Compensation insurance and Employers' Liability Insurance in accordance with the laws of the State of California. Employers' Liability Insurance shall have coverage for a minimum liability of Two Million Dollars ($2,000,000.00) covering Licensee's employees engaged in the work permitted hereunder. Licensee shall insure the procurement and maintenance of such insurance by all contractors or subcontractors engaged on any such work. b. Personal Injury and Property Damage Liability Insurance. Licensee shall procure and maintain Personal Injury and Property Damage Liability Insurance, including but not limited to what is commonly referred to as coverage for XCU Hazards (Explosion, Collapse and Underground Property Damage), which shall include as additional insureds, the Licensor, its successors and assigns, any railroad company operating on the Property, and their respective directors, officers, employees and agents (collectively "Insureds "), as they now or as they may hereafter be constituted, singly, jointly or severally. Such insurance shall include Automobile Bodily Injury and Property Damages coverage including owned, hired and non -owned vehicles. Said insurance shall be subject to a combined single limit of liability of not less than Five Million Dollars ($5,000,000.00). C, Railroad Protective Insurance. Licensee shall provide, with respect to the construction activities it or any of its subcontractors perform above the railroad tracks, or within fifty (50) feet horizontally of the railroad tracks, Railroad Protective Liability Insurance with the Insurance Services Offices (ISO) /Railroad Insurance Management Association (RIMA) form with pollution coverage for job site fuels and lubricants. Licensee shall be named insured and said policy shall cover all other railroads operating on the Property and /or the right -of -way. Resolution No. 2017 -131 N.C.S. Page 9 The policy shall have limits of liability of not less than Two Million Dollars ($2,000,000.00) per occurrence, combined single limit, for losses arising out of injury to or death of all persons, and for physical loss or damage to or destruction of property, including the loss of use thereof, and a Five Million Dollar ($5,000,000.00) annual aggregate shall apply. Prior to commencing work or entering onto the Property, Licensee shall file the original of the policy for Railroad Protective Liability Insurance with Licensor. d. Proof of Insurance. Prior to entering onto the Property, Licensee shall file Certificates of Insurance with Licensor evidencing the required coverages and endorsements. Upon request, a certified duplicate original of any applicable policy shall also be filed with Licensor, except that the original of the policy for Railroad Protective Liability Insurance must be filed with Licensor, as stated in paragraph I I (c), above. All Certificates of Insurance and endorsements shall stipulate: 1) Notice of Alteration or Cancellation. The insurance company issuing such policy shall give no less than thirty (30) days' advance written notice to Licensor of any material alteration, cancellation, non- renewal or reduction in aggregate limits, if such limits apply; 2) Primary Insurance. The policy is Primary Insurance and the insurance company providing such policy shall be liable thereunder for the full amount of any loss or claim for which Licensee is liable under Sections 10 and 11, up to and including the total limit of liability, without right of contribution from any other insurance effected or which may be effected by the Insureds; 3) Additional Insureds. The policy shall also stipulate that the inclusion of the Insureds as additional insureds shall not in any way affect its rights either as respects any claim, demand, suit or judgment made, brought or recovered- against Licensee. Said policy shall protect licensee and the Insureds in the same manner as though a separate policy had been issued to each, but nothing in said policy shall operate to increase the insurance company's liability as set forth in its policy beyond the amount or amounts shown or to which the insurance company would have been liable if only one interest had been named as an insured. 4) Insurance Company Qualification. The insurance policy shall be written by an insurance company or companies acceptable to Licensor. Such insurance company shall be authorized to transact business in the state of California. e. Self- Insurance. Licensee may self - insure any or all of the above - required coverages, upon proof of adequately funded reserves, either through a shared pool of reserves or through its own reserves. Upon request of Licensor, Licensee must provide Licensor with evidence of the existence of sufficient reserves to fund the coverage levels required under this License. 15. COMPLIANCE WITH LAWS. Licensee shall comply, at Licensee's expense, with all applicable laws, regulations, rules and orders with respect to the use of the Property, regardless of when they became or become effective, including without Resolution No. 2017 -131 N.C.S. Page 10 limitation, those relating to construction, grading, signage, health, safety, noise, environmental protection, hazardous materials, waste disposal and water and air quality, and shall furnish satisfactory evidence of such compliance upon request of Licensor. Licensee shall also obtain, at Licensee's expense, any and all permits required for the construction and operation of the Facility. 16. NOTICES. All notices required or permitted to be given under this License shall be in writing and mailed, postage prepaid, by certified or registered mail, return receipt requested, or by personal delivery or by overnight courier, to the addresses indicated below or at such other place or places as either Licensor or Licensee may, from time to time, respectively, designate in a written notice given to the other. Notices shall be deemed sufficiently served four (4) days after the date of mailing by certified or registered mail, or one (1) day after mailing by overnight courier, or immediately upon personal delivery. TO LICENSOR: General Manager Sonoma -Marin Area Rail Transit District 5401 Old Redwood Highway, Ste. 200 Petaluma, CA 94954 TO LICENSEE: City Clerk City of Petaluma 11 English Street Petaluma, CA 94952 Day to day communications to Licensor regarding this License should be directed to Licensor's Real Estate Manager at the above address for Licensor. 17, RELOCATION OF FACILITY. In the event Licensor shall at any time so require, Licensee, at Licensee's sole cost and expense, shall reconstruct, alter, relocate, or otherwise improve the Facility within thirty (30) calendar days of receipt of written notice from Licensor to do so, or within such longer period as approved by Licensor in writing. Licensor shall designate the location for Licensee to relocate the Facility, if on property owned by Licensor. Any necessary property interests shall be obtained at Licensoe's sole cost and expense. Licensee shall perform the relocation work in a manner and at times satisfactory to Licensor. If Licensee fails to perform such work, Licensor may perform the work at the expense of the Licensee, which expense shall, upon demand, be paid by Licensee. The provisions of this License shall apply to all work Licensee performs under this section. Licensor agrees not to require Licensee to remove or relocate any structures, or perform any work, that would require Licensee to violate local, state or federal law, statutes or regulations, or other orders or requirements of Licensee's regulatory authorities, including but not limited to the CPUC, the Federal Railroad Authority "FRA ") and the Surface Transportation Board ( "STB "). 18. SUCCESSORS AND ASSIGNS. The License granted herein is personal to Licensee and no right hereunder may be assigned or sublet, in whole or in part, and Licensee shall not permit any other person, firm, or corporation to use, in whole or in part, any of the rights or privileges granted pursuant to this License without first obtaining the written consent of Licensor. Licensor may withhold its consent for any Resolution No, 2017 -131 N.C.S. Page I I reason, If approved, a successor in interest shall be required to execute a Revocable Non - Exclusive License Agreement with Licensor and provide the insurance coverage required herein. 19. NO WAIVER. No waiver of any default or breach of any covenant of this License by either party shall be implied from any omission by either party to take action on account of such default if such default persists or is repeated. No express waiver shall affect any default other than the default specified in the waiver. The waiver shall be operative only for the time and to the extent stated therein. Waivers of any covenant, term or condition by either party shall not be construed as a waiver of any subsequent breach of the same covenant, term or condition. The consent or approval by either party to or of any act by either party requiring further consent or approval shall not be deemed to waive or render unnecessary their consent or approval to or of any subsequent similar acts. 20. SEVERABILITY. Each provision of this License is intended to be severable. If any term or provision shall be determined by a court of competent jurisdiction to be illegal or invalid for any reason whatsoever, such provision shall be severed from this License and shall not affect the validity of the remainder of this License. 21, ATTORNEYS' FEES. If any legal proceeding should be instituted by either of the parties to enforce the terms of this License or to determine the rights of the parties under this License, the prevailing party in the proceeding shall receive, in addition to all court costs, reasonable attorneys' fees, 22. CONDEMNATION. In the event all or any portion of the Property is condemned for public use, Licensee shall receive compensation only in the amount awarded for the taking or damaging of Licensee's Facility. Any compensation for damages for taking Property or Licensee's license interest thereon awarded to Licensee shall be and hereby is assigned to Licensor. 23, CONDITION OF EFFECTIVENESS. As a condition precedent to the effectiveness of this License, Licensee shall have paid the License fee, had a site - specific work plan approved by Licensor and provided satisfactory proof of insurance as required herein. 24. GOVERNING LAW. The rights and liabilities of the parties under this License shall be interpreted in accordance with the laws of the State of California. 25, INTEGRATION. This License constitutes the complete expression of the agreement between the parties and supersedes any prior agreements, whether written or oral, concerning the subject of this License, whether or not such prior terms and agreements are fully expressed herein. Any modification of or addition to this License must be in writing, signed by both parties. 26. LICENSEE TO ACT IN INDEPENDENT CAPACITY. Licensee, its officers, agents and employees shall act in an independent capacity and shall not represent themselves to be or be constructed to be offices, agents or employees of Licensor. 27. LICENSE NOT A LEASE. This License does not constitute a lease, but constitutes a mere revocable license and Licensee is limited to the use of the Property Resolution No. 2017 -131 N.C.S. Page 12 expressly and specifically described herein. Licensee disclaims any interest that, when coupled with the license herein granted, would render it irrevocable. 28. TIME OF ESSENCE. Time is and shall be of the essence of this License and of each and every provision contained in this License. 29. NO THIRD PARTY BENEFICIARIES. Nothing contained in this License shall be construed to create and the parties do not intend to create any rights in third parties. 30. RELATIONSHIP. The parties intend by this License to establish the relationship of licensor and licensee only, and do not intend to create a partnership, joint venture, joint enterprise or any business relationship other than that of licensor and licensee. 31. CAPTIONS. The captions in this License are for convenience only and are not a part of this License. The captions do not in any way limit or amplify the provisions hereof, and shall have no effect upon the construction or interpretation of any part hereof. IN WITNESS WHEREOF, the parties have executed this License as of the Effective Date by their duly authorized representatives. LICENSOR: SONOMA -MARIN AREA RAIL TRANSIT DISTRICT By: Farhad Mansourian, General Manager ATTEST: Bv: Letitia Ross - Mendoza Clerk of the Board of Directors APPROVED AS TO FORM: By: District Counsel Attached: Exhibit A — Licensee Bus Pull Out Plan LICENSEE: CITY OF PETALUMA Rv: John C. Brown, City Manager ATTEST: By: City Clerk APPROVED AS TO FORM: BV. City Attorney Resolution No. 2017 -131 N.C.S. Page 13