HomeMy WebLinkAboutAgenda - 09-19-2007-4h1
ORANGE COUNTY
BOARD OF COMMISSIONERS
ACTION AGENDA ITEM ABSTRACT
Meeting Date: September 19, 2007
Action Agenda
Item No. ~---~
SUBJECT: License Agreement between State University Railroad Company and Orange
County for the Extension of Public Sewer to the Orange County Landfill
DEPARTMENT: Solid Waste Management PUB<_IC HEARING: (Y/N) No
ATTACHMENT(S): INFORMATION CONTACT:
License Agreement
Geoff Gledhill, 732-2196
Gayle Wilson, 968-2885
PURPOSE: To authorize the County Manager to execute the License Agreement between State
University Railroad Company and Orange County for the extension of public sewer to the
Orange County Landfill.
BACKGROUND: The Board of County Commissioners has previously authorized the extension
of public sewer from existing sewer mains east of the railroad to landfill property so that the
current pumping and hauling of landfill leachate can be replaced by direct injection into a
sanitary sewer. The BOCC authorized a contract for engineering services in 2005.
The project has been designed and lacks two components in order to be ready for bidding and
construction. Staff has recently discussed the acquisition of an easement from a private
property owner that is necessary to receive final permit for construction of the sewer extension.
Secondly, a license must be obtained from the railroad because the sewer extension must cross
the railroad tracks to reach landfill property.
The license will allow construction and use of the railroad property for the installation,
construction, maintenance, operation and removal of the sewer.
FINANCIAL. IMPACT: A license fee of $10,700 is required and will be paid from the Solid
Waste Enterprise Fund's 2007/08 budget.
RECOMMENDATION(S): The Manager recommends that the Board authorize the Manager to
execute the License Agreement between State University Railroad Company and Orange
County, subject to final review of the agreement by the County Attorney.
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DMjM HARRIS I AECOM
DMJM Marris
The Atlantic Building, 260 South Broad Streei, Suite 1500. Philadelphia, PA 19102
T 215.735.0832 F 215.735.0903 wv~w.dmjmharris.com
August 29, 2007
Mr. Philip N. Post, P.E.
Philip Post and Associates
401 Providence Road
Suite 200
Chapel Hill, NC 27514
Subject: Chapel HlII, Orange County, North Carolina
Milepost J-5.55, Glenn-Carrboro Line, Piedmont Division
Norfolk Southern Activity No. 1099352
Installation of an 8-inch sewer pipe encased in a 16-inch steel pipe
Dear Mr. Post:
Enclosed are two revised original counterparts of the License Agreement for execution on behalf of Orange
County with Section 10 modified as per your letter dated August 28, 2007. Please sign, witness and return bath
counterparts to this DMJM Harris office. Please do not date this document as the license will not be in effect until
final execution by Railway. Railway will date the agreement and will return a fully executed original for your
records.
A check in the amount of $10,700 (payable to State University Railroad Company) to cover the insurance fee
($1,000) and the one-time license fee ($9,700} is to be forwarded with the agreement.
Please refer to Paragraph 11 in the License Agreement for information regarding insurance requirements, and
direct al! questions in this regard to Norfolk Southern's Risk Manager, Mr. Scott Dickerson (757/629-2364}.
No work on railroad right of way is authorized until you are in receipt of a fully executed agreement and
instructions are attained from Railway's designated construction representative. The contact information for
Railway's construction representative(s) will be provided upon return of the fully executed counterpart.
The terms and conditions of this License Agreement shall be valid for 60 calendar days after the date of this fetter.
If you are unable to execute the License Agreement within this 60 calendar day time frame, please advise this
office in writing of your intent. This activity wilt be automatically cancelled in 60 calendar days if the agreement is
not executed, or we do not receive your request for a time extension. Reactivation of cancelled activities may
require a new application along with appropriate application fees, and Jicense agreetvients will be re-drafted in
ac;~;ordance with then current Norfolk Southern terms and conditions.
Very truly yours,
James McKay
Contract Administrator
215-966-4819
james.mckayC~ dmjmharris.com
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THIS AGREEMENT, dated as of the day of , 20__._ is made and
entered into by and between
STATE UNIVERSITY RAILROAD COMPANY, a North Carolina corporation,
whose mailing address is Three Commercial Place, Norfolk, Virginia, 23510 (hereinafter
called "Railway"}; and
ORANGE COUNTY, a body politic and corporate, a subdivision of the State of North
Carolina, whose mailing address is 15.14 Eubanks Road, Chapel Hill, North Carolina,
27514 (hereinafter called "Licensee").
W ITNES SETH
WHEREAS, Licensee proposes to install, maintain, operate and remove an 8-inch
ductile iron sanitary sewer pipe encased in a 16-inch steel pipe (hereinafter called the
"Facilities") located in, under and across the right-of--way ar property and any tracks of Railway,
at Milepost J-5.55, Glenn-Carrboro Line, at or near Chapel Hill, Orange County, North
Carolina, the same to be Iocated in accordance with and limited to the installation shown on
print of drawings marked Sheets 1 of 6, and 3 of 6 and a pipe data sheet, dated July 11, 2007,
attached hereto and made a part hereof; and
WHEREAS, Licensee desires a license to use such right-of-way ar property of Railway
for the installation, construction, maintenance, operation and removal of the Facilities.
NOW, THERF..FORE, for and in consideration of the prennises, the payment of a non-
refundable, non-assignable. one-time fee in the amount of TEN THOUSAND SEVEN
IIUNDFF.n AND 00!100 DOLLARS ($10,700.00) (hereinafter called the "Fee") to cover the
Risk Financing Fee (as hereinafter defined) in the amount of $1,000, and aone-time occupancy
fee in the amount of $9,700, and the covenants hereinafter set forth, Railway hereby permits and
grants to Licensee, insofar as Railway has the right to do so, without warranty and subject to all
encumbrances, covenants and easements to which Railway's title may be subject, the right to use
and occupy so much of Railway's right-of--way or property as may be necessary for the
installation, construction, maintenance, operation and removal of the Facilities (said right-of-way
or property of Railway being hereinafter collectively called the "Premises"}, upon the following
terms and conditions:
1. Use and Condition of the Premises. The Premises shall be used by Licensee only
for the installation, construction, maintenance, operation and removal of the Facilities and for na
other purpose without the prior written consent of Railway, which consent may be withheld by
Railway in its sole discretion. Licensee accepts the Premises in their current "as is" condition, as
suited for the installation and operation of the Facilities, and without the benefit of any
improvements to be constructed by Railway.
2. Installation of the Facilities; Railway Sugport. Licensee shall, at its expense,
install, construct, maintain and operate the Facilities on a lien-free basis and in such a manner as
will not interfere with the operations of Railway,. or endanger persons or property of Railway.
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Such installation, construction, maintenance and operation of the Facilities shall be in accordance
with (a} the plans and specifications {if any) shown on the prints attached hereto and any other
specifications prescribed by Railway, (b) applicable laws, regulations, ordinances and other
requirements of federal, state and local governmental authorities, and (c} applicable
specifications adopted by the American Railway Engineering and Maintenance-of--Way
Association, when not in conflict with the applicable plans, specifications, laws, regulations,
ordinances or requirements mentioned in (a) and {b), above. All underground pipes must have
secondary pipe containment if the material flowing .through the pipeline poses a safety or
environmental hazard. Any change to the character, capacity ar use of the Facilities shall require
execution of a new agreement.
3. Railway Support. Railway shall, at Railway's option, furnish, at the sole expense
of Licensee, Labor and materials necessary, in Railway's sole judgment, to support its tracks and
to protect its traffic {including, without limitation, flagging) during the installation, maintenance,
repair, renewal or removal of the Facilities.
4. Electronic Interference. Licensee will provide Railway with na less than sixty
(60) days advance written notice prior to the installation and operation of cathodic protection in
order that tests may be conducted on Railway's signal, communications and other electronic
systems {hereinafter collectively called the "Electronic Systems") for possible interference. If
the Facilities cause degradation of the Electronic Systems, Licensee, at its expense, will either
relocate -the cathodic protection or modify the Facilities to the satisfaction of Railway=so as to
eliminate such degradation. Such modifications may include, without limiting the generality of
the foregoing, providing additional shielding, reactance or other corrective measures deemed
necessary by Railway. The provisions of this paragraph 4 shall apply to the Electronic Systems
existing as of the date of this Agreement and to any Electronic Systems that Railway may install
in the future.
5. Corrective Measures. If Licensee fails to take any corrective measures requested
by Railway in a timely manner, or if an emergency situation is presented which, in Railway's
judgment, requires immediate repairs to the Facilities, Railway, at Licensee's expense, may
undertake such corrective measures or repairs as it deems necessary or desirable.
6. Railway Changes. If Railway shall make any changes, alterations or additions to
the line, grade, tracks, structures; roadbed, installations, right-of-way or works of Railway, or to
the character, height or alignment of the Electronic Systems, at ar near the Facilities, Licensee
shall, upon thirty {3Q) days prior written notice from Railway and at its sole expense, make such
changes in the location and character of the Facilities as, in the opinion of the chief engineering
officer of Railway, shall be necessary or appropriate to accommodate any construction,
improvements, alterations, changes or additions of Railway.
?. Assumption of Risk. Unless caused solely by the negligence of Railway or
caused solely by the willful misconduct of Railway, Licensee hereby assumes all risk of damage
to the Facilities and Licensee's other property relating to its use and occupation of the Premises
or business canned on the Premises and any defects to the Premises; and Licensee hereby
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indemnifies Railway, its officers, directors, agents and employees from and against any liability
for such damage.
8. Entry Upon Premises. Prior to commencement of any work to be performed on or
about the Premises, Licensee shall notify the appropriate Division Engineer far the scheduling of
protection and inspection. Within seventy-two (72) hours after the Division Engineer's actual
receipt of such notification, the Division Engineer shall review the necessity and availability of
flagmen for the proposed work and advise Licensee of such matters and the estimated cost
therefor. No work shall be permitted on or about the Premises without the presence of Railway's
flagman or the Division Engineer's waiver of the requirement for flag protection. Entry on or
about the Premises or any other Railway right-of way without the Division Engineer's prior
approval shall be deemed trespassing. Licensee agrees to pay Railway, within thirty (30) days
after delivery of an invoice therefor, for any protection and inspection costs incurred by Railway,
in Railway's sole judgment, during any such entry.
9. Liens; Taxes. Licensee will not permit any mechanic's liens or other liens to be
placed upon the Premises, and nothing in this Agreement shall be construed as constituting the
consent or request of Railway, express or implied, to any person for the performance of any labor
or the furnishing of any materials to the Premises, nor as giving Licensee any right, power or
authority to contract for or permit the rendering of any services or the furnishing of any materials
that could give rise to any mechanic's liens or. other liens against the Premises. In addition,
Licensee shall be liable for all taxes levied or assessed against the Facilities and any other
equipment or other property placed by Licensee within the Premises. In the event that any such
lien shall attach to the. Premises or Licensee shall fail to pay such taxes, then, in addition to any
other right or remedy available to Railway, Railway may, but shall not be obligated to, discharge
the same. Any amount paid by Railway for any of the aforesaid purposes, together with related
court costs, attorneys' fees, fines and penalties, shall be paid by Licensee to Railway within ten
(10) days after Railway's demand therefor.
I0. Indemnification. To the extent permitted by law, Licensee hereby agrees to
indemnify and save harmless Railway, Its officers, directors, agents and employees, from and
against any and all liabilities, claims, losses, damages, expenses (including attorneys' fees) or
costs for personal injuries (including death) and property damage to whomsoever or whatsoever
occurring (hereinafter collectively called "Losses") that arise in any manner from (a) the
installation, construction, maintenance, operation, presence or removal af, or the failure to
properly install, construct, maintain, operate or remove, the Facilities, or (b) any act, omission
or neglect of Licensee, its agents, servants, employees or contractors in connection therewith,
unless caused solely by the negligence of Railway or caused solely by the willful misconduct of
Railway.
ll. Insurance.
(a) Without limiting in any manner the liabilities and obligations assumed by
Licensee under any other provision of this Agreernerit, and as additional protection to Railway,
Licensee shall, at its expense, pay the Risk Financing Fee set forth in subparagraph (i) below and
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shall procure and maintain with insurance companies satisfactory to Railway, the insurance
policies described in subparagraphs (ii) and (iii).
(i} Upon execution of this Agreement, Licensee shall pay Railway a
risk financing fee of $1,000.00 per installation (herein called the "Risk Financing
Fee") to provide Railroad Protective Liability Insurance or such supplemental
insurance (which may be self-insurance) as Railway, in its sole discretion, deems
to be necessary or appropriate.
(ii} Prior to the installation of the Facilities, or any subsequent entry by
Licensee upon the Premises or other Railway property, Licensee, and each of its
contracturs, shall at its sale expense procure and maintain for the course of any
such installation or entry, a Camrnercial General Liability Insurance policy
having a combined single limit of not less than $1,000,000 for each occurrence,
naming Railway as an additional insured and containing products and completed
operations and contractual liability coverage;
(iii) Prior to any entry upon the Premises or other Railway property
occurring after installation of the Facilities, unless Railway elects to make
available and Licensee pays the then current risk financing fee far each affected
installation, Licensee, or its contractor, shall at its sole expense pracure and
maintain during such entry a policy of Railraad Protective Liability Insurance
naming State University Railroad Company as a named insured and having
combined single limits of not less than $2,000,000 for each occurrence and
$6,000,000 in the aggregate. Such policy shall be written using Insurance
Services Offices Farm Numbers CG 00 35 Ol 07 98 and Pollution Exclusion
Amendment Form CG 28 3107 98.
(b) All insurance required under the preceding subsection (a) shall be
underwritten by insurers, and be of such farm and content, as may be acceptable to Railway.
Evidence of such insurance (a certificate of insurance far the Commercial General Liability
Insurance policy and an original Railroad Protective Liability Insurance policy for subsequent
entry when Railway does not make available a risk financing fee therefor) shall be furnished to
Railway's Director Risk Management, Three Commercial Place, Norfolk, Virginia 23510-2191
for review and approval.
12. Environmental Matteis. Licensee assumes all responsibility for any
environmental obligations imposed under applicable laws, regulations, ordinances or other
requirements of federal, state and local governmental authorities relating to (a) the installation,
construction, maintenance, operation or removal of the Facilities, including notification and
reporting of any releases, and (b) any contarninatian of any property, water, air or groundwater
arising- or resulting, in whole or in part, from Licensee's operation or use of the Premises
pursuant to this Agreement. In addition, Licensee shall obtain any necessary permits to install,
construct, maintain, operate or remove the Facilities. Licensee agrees to indemnify and hold
harmless Railway from and against any and all fines, penalties, demands ar other Lasses
(including attorneys' fees) incurred by Railway or claimed by any person, company or
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governmental entity relating to (a) any contamination of any liroperty, water, air or groundwater
due to the use or presence of the Facilities on the Premises, (b} Licensee's violation of any laws,
regulations or other requirements of federal, state ar local governmental .authorities in connection
with the use or presence of the Facilities on the Premises or (c) any violation of Licensee's
obligations imposed under this paragraph. Without limitation, this indemnity provision shall
extend to any cleanup and investigative costs relating to any contamination of the Premises
arising or resulting from, in whole or in part, Licensee's use of the Facilities or any other
activities by or on behalf of Licensee occurring on or about the Premises. Licensee further
agrees not to dispose of any trash, debris or wastes, including hazardous waste, on the Premises
and will not conduct any activities on the Premises, which would require a hazardous waste
treatment, storage or disposal permit.
13. Assignments and Other Transfers.
(a) Licensee shall not assign, transfer, sell, mortgage, encumber, sublease or
otherwise convey (whether voluntarily, involuntarily or by operation of law) this Agreement or
any interest therein, nor license, mortgage, encumber or otherwise grant to any other person or
entity (whether voluntarily, involuntarily or by operation of law) any right or privilege in or to
the Premises (or any interest therein}, in• whole or in part, without the prior written consent of
Railway, which consent may be withheld by Railway in its sole discretion. Any such assignment
or other transfer made without Railway's prior written consent shall be null and void and, at
Railway's option, shall constitute an immediate default of this Agreement. Notwithstanding the
foregoing, upon prior written notice to Railway,, Licensee may assign this Agreement to a parent,
a• wholly-owned subsidiary of Licensee or a wholly-owned subsidiary of Licensee's parent
without RaiIway's consent; rovide however, that no such assignment shall relieve Licensee of
its obligations under this Agreement.
(b) Railway shall have the right to transfer and assign, in whole or in part, all
its rights and obligations hereunder and in or to the Premises. Frain and after the effective date
of any such assignment or transfer, Railway shall be released from any further obligations
hereunder; and Licensee shall look solely to such successor-in-interest of Railway for the
performance of the obligations of "Railway" hereunder.
14. Meaning of "Railway". The word "Railway" as used herein shall include any
other company whose property at the aforesaid location may be leased br operated by Railway.
Said term also shall include Railway`s officers, directors, agents and employees, and any parent
company, subsidiary or affiliate.of Railway and their respective officers, directors, agents and
employees.
15. Default; Remedies.
(a) The following events shall be deemed to be events of default by Licensee
under this Agreement:
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(i) Licensee shall fail to pay the Fee or any other sum of money due
hereunder and such failure shall continue for a period of ten (10) days after the
due date thereof;
(ii) Licensee shall fail to comply with any provision of this Agreement
not requiring the payment of money, aIl of which terms, provisions and covenants
shall be deemed material, and such failure shall continue for a period of thirty
(30) days after written notice of such default is delivered to Licensee;
(iii) Licensee shall become insolvent or unable to gay its debts as they
become due, or Licensee notifies Railway that it anticipates either condition;
(iv) Licensee takes any action to, ar notifies Railway that Licensee
intends to file a petition under any section or chapter of the United States
Bankruptcy Code, as amended from time to time, or under any similar law or
statute of the United States ar any State thereof; or a petition shall be filed against
Licensee under any such statute; or
(v) a receiver ar trustee shall be appointed for Licensee's license
interest hereunder or for all or a substantial part of the assets of Licensee, and
such receiver ar trustee is not dismissed within sixty (60) days of the appoinrinent.
(b) Upon the occurrence of any event or events of default by Licensee,
whether enumerated in this paragraph 1 S or not, Railway shall have the option to pursue any
remedies available to it at Iaw or in equity without any additional notices to Licensee. Railway's
remedies shall include, but not be limited ta, the fallowing: (i} termination of this Agreement, in
which event Licensee shall immediately surrender the Premises to Railway; (ii) entry into or
upon the Premises to do whatever Licensee is obligated to do under the terms of this License, in
which event Licensee shall reimburse Railway an demand for any expenses which Railway may
incur in effecting compliance with Licensee's obligations under this License, but without
rendering Railway liable for any damages resulting to Licensee or the Facilities from such
action; and (iii) pursuit of all other remedies available to Railway at law or in equity, including,
without limitation, injunctive relief of all varieties.
16. Railway Termination Right. Notwithstanding anything to the contrary in this
Agreement, Railway shall have the right to terminate this Agreement and the rights granted
hereunder, after delivering to Licensee written notice of such termination na less than sixty (60}
days prior to the effective date thereof, upon the occurrence of any one or more of the following
events:
{a) If Licensee shall discontinue the use or operations of the Facilities; or
(b) If Railway shall be required by any governmental authority having
jurisdiction over the Premises to remove, relocate, reconstruct or discontinue operation of
its raikoad on or about the Premises; or
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(c) If Railway, in the good faith judgment of its Superintendent, shall require
a change in the location or elevation of its railroad on or about the location of the
Facilities or the .Premises that might effectively prohibit the use or operation of the
Facilities; or
(d) If Railway, in the good faith judgment of its Superintendent, determines
that the maintenance ar use of the Facilities unduly interferes with the operation and
maintenance of the facilities of Railway, or with the present or future use of such
property by Railway, its lessees, affiliates, successors or assigns, for their respective
purposes.
17. Condemnation. 7f the Premises or any portion thereof shall be taken or
condemned in whole or in part for public purposes, or sold in lieu of condemnation, then this
Agreement and the rights granted to Licensee hereunder shall, at the sole option of Railway,
forthwith cease and terminate. All compensation awarded for any taping (or sale proceeds in lieu
thereof) shall be the property of Railway, and Licensee shall have no claim thereto, the same
being hereby expressly waived by Licensee.
18. Removal of Facilities• Survival. The Facilities are and shall remain the personal
property of Licensee. Upon the expiration or termination of this Agreement, Licensee shall
remove the Facilities from the Premises within thirty (30) days after the effective date thereof.
In performing such removal, unless otherwise directed by Railway, Licensee shall restore the
Premises to the same condiCion as existed prior to the installation or placement of Facilities,
reasonable wear and tear excepted. In the event Licensee shall fail to so remove the Facilities or
restore the Premises, the Facilities shall bB deemed to have been abandoned by Licensee, and tPie
same shall become the property of Railway for Railway to use, remove, destroy or otherwise
dispose of at its discretion and without responsibility for accounting to Licensee therefor;
provided, however, in the event Railway elects to remove the Facilities, Railway, in addition to
any other legal remedy it may have, shall have the right to recover from Licensee all costs
incurred in connection with such removal and the restoration of the Premises. Notwithstanding
anything to the contrary contained in this Agreemient, the expiration or termination of this
Agreement, whether by Iapse of time or otherwise, sha11 not relieve Licensee from Licensee's
obligations accruing prior to the expiration or termination date; and such obligations shall
survive any such expiration or other termination of this Agreement.
19. Entire A Bement. This Agreement contains the entire agreement of Railway and
Licensee and supersedes any prior understanding or agreement between Railway and Licensee
respecting the subject matter hereof; and no representations, warrantiBS, inducements, proruises
or agreements, oral or otherwise, between the parties not embodied in this Agreement shall be of
any force or effect.
20. A.ttorne sY ' Fees. If Railway should bring any action under this Agreement, or
consult or place the Agreement or any amount payable by Licensee hereunder, with an attorney
concerning or for the enforcement of any of Railway's rights hereunder, then Licensee agrees in
each and any such case to pay to Railway alI costs, including but not limited to court costs and
attorneys' fees, incurred in connection therewith.
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21. Severability. If any clause or provision of this Agreement is illegal, invalid or
unenforceable under present or future laws effective during the term of this Agreement, then and
in that event, it is the intention of the parties hereto that the remainder of this Agreement shall
not be affected thereby; and it is also the intention of the parties to this Agreement that in lieu of
each clause or provision of this Agreement that is illegal, invalid or unenforceable, there be
added as a part of this Agreement a clause or provision as similar in terms to such illegal, invalid
or unenforceable clause or provision as maybe possible and be legal, valid and enforceable.
22. Modifications; Waiver; Successors and Assigns. This Agreement may not be
altered; changed or amended, except by instrument in writing signed by both parties hereto. No
provision of this Agreement shall be deemed to have been waived by Railway unless such
waiver shall be in a writing signed by Railway and addressed to Licensee, nor shall any custom
or practice that may evolve between the parties in the administration of the terms hereof be
construed to waive or lessen the right of Railway to insist upon the performance by Licensee in
strict accordance with the terms hereof. The terms and conditions contained in this Agreement
shall apply to, inure to the benefit of, and be binding upon the parties hereto, and upon their
respective successors in interest and legal representatives, except as otherwise herein expressly
provided. If there shall be more than one Licensee, the obligations hereunder imposed upon
Licensee shall be joint and several.
23. Notice. Any and all other notices, demands or requests by or from Railway to
Licensee, or Licensee to Railway, shall be in writing and shall be sent by (a} 'postage paid,
certified mail, return receipt requested, or (b) a .reputable national overnight courier service with
receipt therefor, or (c) personal delivery, and addressed in each case as follows:
If to Railway:
c/o Norfolk Southern Corporation
1200 Peachtree Street, NE - 12~' Floor
Atlanta, Georgia 30309-3504
Attention: Director Contract Services
If to Licensee:
Orange County Solid Waste Management
1514 Eubanks Road
Chapel Hill, Narth Carolina 27514
Either party may, by notice in writing, direct that future notices or demands be sent to a different
address. All notices hereunder shall be deemed given upon receipt (or, if rejected, upon
rejection). .
24. Miscellaneous. All exhibits, attachments, riders and addenda referred to in this
License are incozporated into this Agreement and made a part hereof for all intents and purposes.
Time is of the essence with regard to each provision of this Agreement. This Agreement shall be
construed and interpreted in accordance with and governed by the laws of the State in which the
Premises are located. Each covenant of Railway and Licensee under this Agreement is
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independent of each other covenant under this Agreement. No default in performance of any
covenant by a party shall excuse the other party from the performance of any other covenant.
The provisions of Paragraphs 7, 9, 10, 12 and 18 shall survive the expiration or earlier
termination of this Agreement.
25. Limitations of Grant. Licensee acknowledges that the license granted hereunder
is a quitclaim grant, made without covenants, representations or warranties with respect to
Railway's (a} right to make the grant, (b) title in the Premises, or (c) right to use or make
available to others the Premises for the, purposes contemplated herein. Railway is the owner
and/or holder of the Premises subject to the terms and limitations under which it is owned or
held, including without limitation conditions, covenants, restrictions, easements (including any
pre-existing fiber optic easements ar licenses), encroachments, leases, licenses, permits,
mortgages, indentures, reversionary interests, fee interests, zoning restrictions and other burdens
and limitations, of record and not of record, and to rights of tenants and licensees in possession,
and Licensee agrees that the rights licensed hereunder are subject and subordinate to each and all
of the foregoing. Licensee accepts this grant knowing that others may claim that Railway has no
right to make it, and Licensee agrees to release, hold harmless and indemnify (and, at Railway's
election, defend, at Licensee's sole expense, with counsel approved by Railway} Railway, its
affiliated companies, and its and their respective officers, directors, agents and employees, from
and against any detriments to, ar liabilities of, any type or nature arising from such claims,
including punitive damages and any forfeitures declared or occurring as a result of this grant.
26. Limitations UAOn Damages. Notwithstanding any other provision of this
Agreement, Railway shall not be liable for breach of this Agreement or under this Agreement for
any consequential, incidental, exemplary, punitive, special, business damages or lost profits, as
well as any claims for death, personal injury, and property loss and damage which occurs by
reason of, ar arises out af, or is incidental to the interruption in or usage of the Facilities placed
upon or about the Premises by Licensee, including without limitation any damages under such
claims that might be considered consequential, incidental, exemplary, punitive, special, business
damages or lass profits.
[Remainder of page intentionally left blank]
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]N WITNESS WI~iEREOF, the parties hereto have executed this Agreement in duplicate,
each part being an original, as of the date first above written.
Witness: STATE UNIVERSITY RAILROAD
COMPANY
As to Railway
Witness:
As to Licensee
Activity Number 1099352
7SM: 7/16/07 rev 8129/07
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Real Estate Manager
ORANGE COUN'['Y
By: _
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