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HomeMy WebLinkAboutAT & SF Railway; 1985-11-25; 173891Contract No. 173891. RETURN TO Secretary, The A.T. & S.P. RY. CO. Top«k« COPY^^ ^^ Santa Fe Original 11003243-25 RIGHT OF ENTRY LICENSE THIS LICENSE, made as of the 25th day of November 1985, between THE ATCHISON, TOPEKA AND SANTA PE RAILWAY COMPANY, a Delaware corporation, (hereinafter called "Licensor"), and CITY OF CARLSBAD, a municipal corporation (hereinafter, whether one party or more, called "Licensee"). WITNBSSETH, That the parties hereto for the considerations hereinafter expressed covenant and agree as follows: 1. Licensor hereby licenses Licensee to use, subject to the rights and easements hereinafter excepted and reserved and upon the terms and conditions hereinafter set forth, the land (hereinafter called "Premises") situated at or near Carlsbad, County of San Diego, State of California, shown on the print hereto attached, No. 1-04685, dated October 15, 1985, marked "Exhibit A" and made a part hereof, for a term beginning on December 1, 1985, and ending when this License shall be terminated as hereinafter provided. 2. Licensor hereby excepts and reserves the right, to be exercised by Licensor and by any others who have obtained or may obtain permission or authority from Licensor so to do, (a) to operate, maintain, renew and relocate any and all existing pipe, power, and communication lines and appurtenances and other facilities of like character upon, over or under the surface of the Premises; and (b) from time to time to construct, operate, maintain, renew and relocate such additional facilities of the same character as will not unreasonably interfere with the use of the Premises by Licensee for the purpose specified in Section 4 hereof. 3. Licensee shall pay to Licensor as compensation for the use of the Premises the sum of Four Hundred and No/100 Dollars ($400.00). 4. (a) Licensee shall use the Premises exclusively as a site for installation of street improvements. Licensee covenants that it will not treat, store or dispose of on the Premises "hazardous waste" or "hazardous substances", as "hazardous waste" and "hazardous substances" may now or in the future be defined by any federal, state, or local governmental agency or body. In the event the Premises are now or in the future used in generating, handling, or transporting of "hazardous waste" or "hazardous substances", Licensee agrees fully to comply with all applicable federal, state, and local laws, rules, regulations, orders, decisions and ordinances (hereinafter referred to as "Standards") concerning "hazardous waste" and "hazardous substances". Licensee further agrees periodically to furnish Licensor with proof, satisfactory to Licensor, that Licensee is in such compliance. In any event, Licensee shall allow Licensor to enter upon the Premises at reasonable times for the purpose of inspection. Rev. 10/83 (1617-RE/CD64a/M78 -1- Should Licensee not comply fully with the above-stated obligations of this Section, notwithstanding anything contained in any other provision hereof, Licensor may, at its option, terminate this License by serving five (5) days' notice of termination upon Licensee; but any waiver by Licensor of any breach of Licensee's obligations shall not constitute a waiver of the right to terminate this License for any subsequent breach which may occur, or to enforce any other provision of this License. Upon termination, Licensee shall be governed by the two sections of this License regarding Licensee's surrender of possession of the Premises. (b) Notwithstanding anything contained in the liability sections hereof, in case of a breach of the obligations contained in this Section, or any of them, regardless of the negligence or alleged negligence of Licensor, Licensee agrees to assume liability for and to save and hold harmless Licensor from and against all injuries to any person and damage to property, including without limitation, employes and property of Licensor and Licensee and all related expenses, including without limitation attorneys' fees, investigators' fees and litigation expenses, resulting in whole or in part from Licensee's failure to comply with any Standard issued by any governmental authority concerning hazardous substances and/or hazardous waste. Licensee, at its cost, shall assume the defense of all claims, suits or actions brought for damages, and fines or penalties hereunder, regardless of whether they are asserted against Licensor or Licensee. Licensee also agrees to reimburse Licensor for all costs of any kind incurred as a result of the Licensee's failure to comply with this Section, including, but not limited to, fines, penalties, clean-up and disposal costs, and legal costs incurred as a result of Licensee's generating, handling, transporting, treating, storing, or disposing of "hazardous waste" or "hazardous substances" on the Premises. (c) It is understood and agreed that a Licensee who does not now, or in the future, generate, handle, transport, treat, store or dispose of "hazardous waste" or "hazardous substances" within the meaning of this Section, is not subject to the provisions of Subsection (b) supra. (d) The object of Licensor is to facilitate the convenient operation of the railroad, telegraph and telephone lines of Licensor, and the transaction of business thereon. In case Licensee shall use the Premises for any other purpose whatever than above mentioned, then Licensor may declare this License at an end and prevent Licensee from using or remaining upon the Premises, with or without process of law. Licensee shall not have the exclusive possession of the Premises as against Licensor. 5. Licensee shall keep and maintain the Premises and improvements in such safe, sanitary and sightly condition as shall be satisfactory to Licensor, and if Licensee fails or refuses within fifteen (15) days after receipt of any request by Licensor so to do, Licensor may, at its option, perform such work; and in such event Licensee shall within thirty (30) days after the rendition of bill therefor reimburse Licensor for the cost so incurred. 6. In using the Premises, and in constructing, maintaining, operating and using the improvements thereon, Licensee shall comply with any and all requirements imposed by Rev. 10/83 (1617-RE/CD64a/M78 -2- federal or state statutes, or by ordinances, orders or regulations of any governmental body having jurisdiction thereover. In the event the Premises or improvements shall be used for the loading, unloading, storing, or otherwise handling of any petroleum products, Licensee shall comply with all regulations and recommendations from time to time promulgated by the Bureau of Explosives of the Association of American Railroads, or any successor agency. All artificial lighting in pump houses, warehouses, or other enclosures upon the Premises, where oil or other inflammable fluid supplies are handled or stored by Licensee, except in unbroken original containers, shall be electricity, and such electrical installation and any other electrical installation upon the Premises shall at all times conform to and be maintained in accordance with the provisions of the then current edition of the National Electrical Code with respect to Class I hazardous locations. Licensee shall promptly pay and discharge any and all liens arising out of any construction, alteration or repair work done, or suffered or permitted to be done, by Licensee on the Premises, and Licensor is hereby authorized to post any notices or take any other action upon or with respect to the Premises that is or may be permitted by law to prevent the attachment of any such liens to the Premises; provided, however, that failure of Licensor to take any such action shall not relieve Licensee of any obligation or liability under this or any other section hereof. 7. Licensee shall at all times keep a space of 15 feet from the nearest rail of any railroad track entirely clear of structures, material and obstructions of every sort provided, however, if by statute or order of competent public authority different clearances shall be required, then Licensee shall strictly comply with such statute or order. 8. Licensee agrees to indemnify and save harmless Licensor against all loss, damage or expense which Licensor may sustain, incur or become liable for, including loss of or damage to property or injury to or death of persons and fines or penalties imposed upon or assessed against Licensor, arising in any manner out of (a) the use of the Premises or improvements by Licensee, (b) any breach by Licensee of the terms, covenants or conditions in this Instrument contained, or (c) the sole or contributing acts or omissions of Licensee or the employes, agents, patrons or invitees of Licensee in, on or about the Premises or improvements, except that if Licensor shall participate in any such contributing acts or omissions, then the loss, damage or expense arising therefrom shall be borne by the parties hereto equally. 9. Neither Licensee, nor the heirs, legal representatives, successors or assigns of Licensee, nor any subsequent assignee, shall transfer or lease the Premises or the improvements, or any part thereof, nor assign or transfer this License or any interest herein, without the written consent and approval in each instance of Licensor. 10. In case of the eviction of Licensee by any one owning or claiming title to or any interest in the Premises, Licensor shall not be liable to Licensee for any damage of any nature whatsoever, or to refund any compensation paid hereunder, except the proportionate part of any compensation paid in advance. Rev. 10/83 (1617-RE/CD64a/M78 -3- 11. Notwithstanding any other provisions of this License, Licensee shall comply with all statutes, ordinances, rules, regulations, orders and decisions (hereinafter referred to as "Standards"), issued by any federal, state or local governmental body or agency established thereby (hereinafter referred to as "Authority"), relating to Licensee's use of Licensor's property hereunder. In its use of the premises, Licensee shall at all times be in full compliance with all Standards, present or future, set by any Authority, including, but not limited to, Standards concerning air quality, water quality, noise, hazardous substances and hazardous waste. In the event Licensee fails to be in full compliance with Standards set by any Authority, Licensor may, after giving reasonable notice of the failure to Licensee, and Licensee, within thirty (30) days of such notice, fails either to correct such noncompliance or to give written notice to the Licensor of its intent to contest the allegation of noncompliance before the Authority establishing the Standard or in any other proper forum, take whatever action is necessary to protect the premises and Licensor's railroad and other adjacent property. Licensee shall reimburse the Licensor for all costs (including but not limited to, consulting, engineering, clean-up and disposal costs, and legal costs) incurred by the Licensor in complying with such Standards, and also such costs incurred by the Licensor in abating a violation of such Standards, protecting against a threatened violation of such Standards, defending any claim of violation of such Standards in any proceeding before any Authority or court, and paying any fines or penalties imposed for such violations. Licensee shall assume liability for and shall save and hold harmless the Licensor from any claim of a violation of such Standards regardless of the nature thereof or the Authority or person asserting such claim, which results from Licensee's use of Licensor's premises, except those claims which arise in whole or in part from the negligence of Licensor. Licensee, at its cost, shall assume the defense of all such claims regardless of whether they are asserted against Licensee or Licensor. Upon written notice from Licensor, Licensee agrees to assume the defense of any lawsuit, administrative action or other proceeding brought against Licensor by any public body, individual, partnership, corporation, or other legal entity, relating to any matter covered by this License for which Licensee has an obligation to assume liability for and/or to save and hold harmless the Licensor. Licensee shall pay all the costs incident to such defense, including, but not limited to, attorneys' fees, investigators' fees, litigation expenses, settlement payments, and amounts paid in satisfaction of judgments. Any and all lawsuits or administrative actions brought or threatened on any theory of relief available at law, in equity or under the rules of any administrative agency shall be covered by this Section, including, but not limited to. the theories of intentional misconduct, negligence, breach of statute or ordinance, or upon any theory created by statute or ordinance, state or federal. 12. If any compensation hereunder shall be due and unpaid, or if default shall be made in any of the covenants or agreements of Licensee herein contained, or in case of any assignment or transfer of this License by operation of law, Licensor may, at its option, terminate this License by serving five (5) days' notice in writing upon Licensee; but any waiver by Licensor of any default or defaults shall not constitute a waiver of the right to terminate this License for any subsequent default or defaults. Rev. 10/83 (1617-RE/CD64a/M78 -4- 13. This License mav be terminated at any time bv either party upon thirty (30) days' notice in writing to be served upon the other party, stating therein the date that such termination shall take place, and upon the expiration of the time specified in such notice this License and all rights of Licensee hereunder shall absolutely cease and determine. 14. All notices to be given hereunder shall be given in writing, by depositing same in the United States mail duly registered or certified, with postage prepaid, and addressed to the Licensee or Licensor as the case may be at the address shown on the signature page hereof, or addressed to such other address as the parties hereto may from time to time designate. 15. Upon termination of this License in any manner herein provided, Licensee shall forthwith surrender to Licensor the possession of the Premises and shall remove its improvements and restore the Premises to substantially the state in which they were prior to its entrance upon the Premises, and in case Licensee shall fail within thirty (30) days after the date of such termination to make such removal or restoration, then Licensor may, at its election to be exercised within thirty (30) days thereafter, either remove the improvements and restore the Premises for the account of Licensee, and in such event Licensee shall within thirty (30) days after the rendition of bill therefor reimburse Licensor for the cost so incurred, or may take and hold the improvements as its sole property. 16. If Licensee fails to surrender to Licensor the Premises, upon any termination of this License, all the liabilities and obligations of Licensee hereunder shall continue in effect until the Premises are surrendered; and 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 of termination or the date, if later, when the improvements are removed and the Premises restored or Licensor elects to take and hold the improvements as its sole property as hereinabove in Section 15 provided. 17. In the event that Licensee consists of two or more parties, all the covenants and agreements of Licensee herein contained shall be the joint and several covenants and agreements of such parties. 18. All the covenants and agreements of Licensee herein contained shall be binding upon the heirs, legal representatives, successors and assigns of Licensee, and shall inure to the benefit of the successors and assigns of Licensor. 19. Licensee will perform all work to be performed by Licensee on Licensor's property to the satisfaction of Licensor and shall reimburse Licensor for all expense including but not limited to engineering, inspection and flagging charges considered necessary by Licensor pertaining to such work. 20. Licensee agrees to furnish and keep in force or arrange to have furnished and keep in force insurance of all kinds and amounts specified below during the period of operation on Licensor's Premises. Licensee shall, with respect to the operations which it performs upon, beneath or adjacent to Licensor's right of way and/or track, furnish or arrange to have Rev. 10/83 (1617-RE/CD64a/M78 -5- furnished (i) regular Contractors' Public Liability Insurance with limits of not less than Five Hundred Thousand Dollars ($500,000) for all liability arising out of bodily injuries to or death of one person and, subject to that limit for each person. One Million Dollars ($1,000,000) for all liability arising out of bodily injuries to or death of two or more persons in one accident or occurrence; and (ii) regular Contractors' Property Damage Liability Insurance with limits of not less than One Million Dollars ($1,000,000) for each occurrence for all liability arising out of damage to or loss or destruction of property. Licensee and all its contractors and subcontractors shall be named insureds either in a single policy of insurance complying with the requirements of this Section or in separate policies maintained during such periods as such contractors and/or subcontractors shall perform any work hereunder. The policy or policies insuring Licensee shall insure Licensee's contractual liability in favor of Licensor contained in Section 8 of this License. 21. Licensee agrees to furnish or arrange to have furnished to Licensor certificates reflecting the insurance coverage or certified copy of insurance policy, if requested by Licensor, as required by Section 20 hereof. Certificates reflecting the coverage required by Section 20 shall unqualifiedly require thirty (30) days' notice to Licensor of cancellation or modification of the insurance referred to in such certificates. 22. Licensee shall not be permitted to exercise the license and permission granted hereunder until notified by Licensor that insurance furnished pursuant to Section 20 hereof is satisfactory. IV WITNESS UHERKOF, this License has been duly executed, in duplicate, by the parties hereto as of the day and year first above written. THE ATCHISOH, TOPBKA AMD SANTA FB RAILWAY COMPANY One Santa Fe Plaza 5200 E. Sheila Street Los Angeles, CA 90040 Tf><9 I/ ivicmayoi \ji wontrdct$ CITY OF CARLSBAD 2965 Roosevelt Street, Suite B Carlsbad, CA 92001 By. MARY H. ( Its Mayor (Licensee) 43348Ch* Rev. 10/83 (1617-RB/CD64a/M78 -6- fumiuhed (i) regular Contractors' Public Liability Insurance with limits of not less than Five Hundred Thousand Dollars ($500,000) for all liability arising out of bodily injuries to or death of one person and, subject to that limit for each person, One Million Dollars ($1,000,000) for all liability arising out of bodily injuries to or death of two or more persons in one accident or occurrence; and (ii) regular Contractors' Property Damage Liability Insurance with limits of not less than One Million Dollars ($1,000,000) for each occurrence for all liability arising out of damage to or loss or destruction of property. Licensee and all its contractors and subcontractors shall be named insureds either in a single policy of insurance complying with the requirements of this Section or in separate policies maintained during such periods as such contractors and/or subcontractors shall perform any work hereunder. The policy or policies insuring Licensee shall insure Licensee's contractual liability in favor of Licensor contained in Section 8 of this License. 21. Licensee agrees to furnish or arrange to have furnished to Licensor certificates reflecting the insurance coverage or certified copy of insurance policy, if requested by Licensor, as required by Section 20 hereof. Certificates reflecting the coverage required by Section 20 shall unqualifiedly require thirty (30) days' notice to Licensor of cancellation or modification of the insurance referred to in such certificates. 22. Licensee shall not be permitted to exercise the license and permission granted hereunder until notified by Licensor that insurance furnished pursuant to Section 20 hereof is satisfactory. IN WITNESS WHEREOF, this License has been duly executed, in duplicate, by the parties hereto as of the day and year first above written. THE ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY One Santa Fe Plaza 5200 E. Sheila Street Los Angeles, CA 90040 By Its I/ Manager of Contracts CITY OF CARLSBAD 2965 Roosevelt Street, Suite B Carlsbad, CA 92008 By. Q4SLER Its Mayor' (Licensee) 43348Ch* Rev. 10/83 (1617-RE/CD64a/M78 -6- SECY'S NO. _ EXHIBIT "A" ATTACHED TO CONTRACT BETWEEN THE ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY AND c/rr or CARLSBAO CHICAGO, ILLINOIS SCALE: 1 IN. TO /oo FT. LOS CHIEF ENGINEER DESCRIPTION APPROVED £".$. 2329+ OO CA&LSBAD, SAN CAL/FOft/V/A.C.E. DRAWING NO. 1 - O4685 r.f FILE NO. ^4 -ose-ooes?