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HomeMy WebLinkAbout1975-12-02; City Council; 989-3; Railroad License for Storm Drain (AT&SF ROW)CITY ' OF CARLS BAD if ;" AGENDA BILL NO. f$f~- &*&&***& 3 Initial: VV Dept.Hd.SCcS DATE; December 2, 1?75 c> Atty._V_£6 DEPARTMENT; Engineering . c- M9r- M^^ Subject:Railroad License for Storm Drain (AT&SF right of way) CT 72-13 (PAPAGAYO) Statement of the Matter The completion of the storm drain system for Papagayo depends on its connection to the existing 63" City storm drain in "the AT&SF right of way. The railroad will issue a license for the connection to the City, but not to the developer. Therefore, the attached agreement with the developer, whereby the City executes the standard license and the developer assumes the City obligations under it, is appropriate. Exh ibi ts Agreement for Papagayo Railroad License Resolution No. J[? f (, Recommenda t\on That the City Council adopt Resolution No. £l^(? and authorize the Mayor to sign on behalf of the City. Council Action 12-2-75 Resolution No. 3796, approving an agreement between the City of Carlsbad and Papagayo Developers for railroad license and .authorizing the Mayor to execute said agreement, was adopted, AGREEMENT FOR PAPAGAYO RAILROAD LICENSE THIS AGREEMENT entered into this 3rd day of December / 1975, by and between the CITY OF CARLSBAD, a municipal corporation of the State of California, hereinafter referred to as CITY, and Papagayo Developers f hereinafter referred to as DEVELOPER. WITNESSETH: WHEREAS, Developer in conjunction with CT72-13 (Papagayo) Development, wishes to install storm drain across the right-of-way of the Atchison, Topeka and Santa Fe Railway Company; and WHEREAS, the Atchison, Topeka and Santa Fe Railway Company is agreeable to grant a license to the City, but not to the Developer; and WHEREAS, the City is willing to secure such license on behalf of Developer, provided the Developer assumes all of the City's obligation under the license; NOW,. THEREFORE, IT IS AGREED as follows: 1. City will attempt to secure from the Atchison, Topeka and Santa Fe Railway Company the License marked Exhibit A, attached hereto and made a part hereof on behalf of Developer and at no cost to the City. 2. Developer agrees to furnish to City all things necessary to secure said License, including, but not limited to, fees and insurance policies. 3. Developer agrees to assume all of City's obligations under said license. 4. Developer shall reimburse City for any expenses incurred by City in conjunction with the license. 5. Developer shall at all times indemnify and save harmless City against and pay in full all loss, damage, or expense that City may sustain, incur, become liable for, resulting in any manner from said license. IN WITNESS WHEREOF, the parties hereto have executed this agreement on the day and year first above written. CITY OF CARLSBAD, A Municipal Corporation of the State of California By fi^J C ROBERT C. FRAZEE, Mayor ATTEST: E. ADAMS, tity Clerk APPROVED AS TO FORM: Vincent F. Biondo, City Attorney DfANE P. HUBBAffD NOTARY PUBLIC -CAUF." Mr COMMISSION EXPIRES . Wt 4, 1979 2*^ *" "^ -^*-**~-**+~+~r~-f-^_f^if^^ 2. A Form 1638 SteadoH Gwwral Sofch<M> PIPE LINE LICENSE THIS LICENSE, Made thi* 1&& day of October: , 1925L-, between THE ATCHISOR* TOPEKA AMD SAFf A FE RAILWAY. COMPANY. , a 5eaa*»re corporation (hereinafter called "Licensor"), party of the first part, and C3TY OF CARLSBAD (hereinafter, whether one or more, called "licensee"), party of the second part. WITNESSETH, That the parties hereto for the considerations hereinafter expressed covenant andagree as follows: 1. Subject to the terms and conditions hereinafter set forth, Licensor licenses Licensee to construct and nmfafaifa One - «- — -.- ~ — -~~.»~~ — — - •» — — • —- - - - - - ~ ~ - - — «- - *. . { 1 ) pipe line- ~, »-~-.~.--».-~-~«- . ~»-.»»~~~ -~ ..... - ,. enty~fotg. jt24Xinches in diameter (hereinafter, whether one or more pipe lines, called the "PIPE LINE'*), across or along the right of way of Licensor at or near the station of—Carlsbad, San Diego Count?.. California thf exact location of the PIPE LINE being more particularly shown by red coloring upon the" print hereto attached, Na^SCL 601-332X5 t dated September 16. 1975 , marked "Exhibit A" and made a part hereof. 2. Licensee shall use the PIPE LINE solely for carrying_water and shall not use it to carry any other commodity or for any other purpose whatsoever. S. Licensee shall pay Licensor as compensation for this license the sum of-—_ One Hundred Fifty and Ko/100 Dollars ($150.00) --. 4. Licensee shall, at its own cost and subject to the supervision and control of. Licensor's chief en-gineer, locate, construct and maintain the PIPE LINE in such a manner and of sucih material that it willnot at any time be a source of danger to or interference with the present or future tracks, roadbed and property of Licensor, or the safe operation of its railroad. In cases where the Licensee is permitted un-der paragraph 2 hereof to use the PIPE LINE for oil, gas, petroleum products, or other flammable or highly volatile substances under pressure, the PIPE LINE shall be constructed, installed and there- after maintained in conformity with the plans and specifications shown on print hereto attached in such eases, marked Exhibit B and made a part hereof. If at any time Licensee shall, in the judgment of Li- censor, fail to perform properly itp obligations under this paragraph, Licensor may, at its option, itselfperform such work as it deems necessary for the safe operation of its railroad, and in such event Licenseeagrees to pay, within fifteen (15) days after bill shall have been rendered therefor, the cost so incurredby Licensor, but failure on the part of Licensor to perform the obligations of Licensee shall not release Licensee from liability hereunder for loss or damage occasioned thereby. 5. Licensee shall reimburse Licensor for any expense incurred by Licensor for false work to sup- port Licensor's tracks and for flagman to protect its traffic 'during installation of the PIPE LINE and for any and all other expense incurred by Licensor on account of the PIPE LINE. 6. Licensee shall at all times indemnify and save harmless Licensor against and pay in full all loss, damage or expense that Licensor may sustain, incur or become liable for, resulting in any manner from the construction, maintenance, use, state or repair, or presence of the PIPE LINE, including any such loss, damage or expense arising out of (a) loss or or damage to property, (b) injury to or death of per- (c) mechanics' or other liens of any character, or (d) taxes or assessments of any kind. 7. If at any time Licensee shall fail or refuse to comply with or carry out any of the covenants here- in contained Licensor may at its election forthwith revoke this license. 8. THIS LICENSE la given by Licensor and accepted by Licensee upon the express condition that the same may be terminated at any time by either party upon ten (10) days' notice in writing to be served upon the other party, stating therein the date that such termination shall take place, and that upon the termination of this license in this or any other manner herein provided, Licensee, upon demand of Licen- sor, shall abandon the use of the PIPE LINE and remove the same and restore the right of way and tracks of Licensor to the same condition in which they were prior to the placing of the PIPE LINE there- under. In case Licensee shall fail to restore Licensor's premises as aforesaid within ten (10) days after the effective date of termination, Licensor may proceed with such work at the expense of Licensee. No termination hereof shall release Licensee from any liability or obligation hereunder, whether of indem- nity or otherwise, resulting from any acts, omissions or events happening prior to the date the PIPE LINE is removed and the right of way and track of Licensor restored as above provided. 9. In the case of the eviction of Licensee by anyone owning or obtaining title to the premises on which the PIPE LINE is located, or the sale or abandonment by Licensor of said premises, Licensor shall not be liable to Licensee for any damage of any nature whatsoever or to refund any payment made by Licensee to Licensor hereunder, except the proportionate part of any recurring rental charge which may have been paid hereunder in advance. 10. Any notice hereunder to be given by Licensor to Licensee shall be deemed to be properly served if it be deposited in the United States Mail, postage prepaid, addressed to Licensee at_ I2QQ Elm Avenue, Carlsbad, California 92008. _. Any notice to be given hereunder by Licensee to Licensor shall be deemed to be properly served if the same be deposited in the United States Mail, postage prepaid, addressed to Licensor's Superintendent at _ 3J-7Q West. Third Streetf .__ San Bernardino» California9g41Q. 11. In the event that two or more parties execute this instrument as Licensee, all the covenants and agreements of Licensee in this license shall be the joint and several covenants and agreements of such parties. . 12. All the covenants and provisions of this instrument shall be binding upon and inure to the bene- fit of the successors, legal representatives and assigns of the parties to the same extent and effect as the same are binding upon and teure to the benefit of the parties hereto, but no assignment hereof by Licen- see, its successors, legal representatives or assigns, or any subsequent assignee, shall be binding upon Licensor without the written consent of Licensor in each instance. Attached hereto and made a part hereof is Rider "A", identified by the signature of J. Rosenbaura. IN WITNESS WHEREOF, The parties have executed this agreement in duplicate the day and year first above •written. " ATCHISON, TOHKA.:AKB. SANTA.;g£ RAILWAY COMPANY Approved as to Description:By_ Its_ Chief Engineer. C£FY OP CARLSBAD I5L It3 Supt. File No. U-17006 (Licensee) R I 0 E R "A" RIDER TO LICENSE AGREEMENT DATED October 16 , 19 75 BETWEEN THE ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY and CITY-OF CARLSBAD 13. In cases where Licensee is permitted under paragraph 2 hereof to use the PIPE LINE for non-flammable substances, the PIPE LINE shall be constructed, installed and thereafter maintained in conformity with plans and specifications set forth in the American Railway Engineering Association, Specification for Pipe Line Crossings under Railway Track for non-flammable substances, Revised 1964, or Specification for the placement of Concrete Culvert Pipe, Revised 1966, whichever may apply. 14. Any work performed on Licensor's right of way by Licensee or Licensee's contractor shall be done in a satisfactory workmanlike manner and in accordance with plans and specifications approved by Licensor, including plans covering any falsework, bracing or cribbing that may be necessary to use over, under or adjacent to Licensor's track, and no work shall be permitted until said plans and specifications have been approved by Licensor. 15. Licensee or Licensee's contractor shall not be permitted to commence work on Licen- sor's right of way without having first received written notification from Licensor's Division Superintendent of permission to proceed. 16. Any contractor or subcontractor performing work on or in connection with the PIPE LINE shall for the purposes of this agreement, and particularly for the purposes of Section 6 of this agreement, be conclusively deemed to be the servant and agent of Licensee acting on behalf and within the scope of such contractors' or subcontractors' employment for Licensee. 17. 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 initial term of construction of the PIPE LINE and during any subsequent term or terms during which maintenance is performed on the PIPE LINE. (a) The 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 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 subparagraph (a) 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 liabil- ity in favor of Licensor contained in paragraph 6 of the printed provisions of this license. 18. 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 subparagraph (a) of paragraph 17 hereof. Certificates reflecting the coverage required by subparagraph (a) shall unqualifiedly require 30 days written notice to Licensor of cancellation or modification of the insurance referred to in such certificates. 19. Licensee shall not be permitted to exercise the license and permission granted hereunder until notified by the Licensor that insurance furnished pursuant to paragraph 17 hereof is satisfactory. IDENTIFIED BY . rii_c EXHIBIT "A" ATTACHED TO CONTRACT BETWEEN THE ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY AND C/ ry a/= CARJLSSA D LOS ANGELES, CALIF, r SCALE: 1 IN. TO IOO FT. J. G. FRY A.CM.-ENGINEERING DESCRIPTION OF PIPE LINE ONj R/U/ j fire. i_ine UU<_AIC.U Ai :>nuwr« ' ^ \ PIPE BASE ' CARRIES PRESSURE SIZE KIND THICKNESS LENGTH TO TOP CARRIER t^t/ff Grav/ify <£& jfs&s^ ^-^ j^" CASING A/^<? ^*~,r<-<S ^a£*D/*y*C*u~ti,t(:a/;/-*™,'a. C.E.C.L. DRAWING NO. OF RAIL OF PIPE 601-332 15 niv FII 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 RESOLUTION NO. 3796 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA APPROVING AN AGREEMENT BETWEEN THE CITY OF CARLSBAD AND PAPAGAYO DEVELOPERS FOR RAILROAD LICENSE AND AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT. The City Council of the City of Carlsbad, California, doe hereby resolve as follows: 1. That that certain agreement between the City of Carlsbad and Papagayo Developers for a railroad license a copy of which is attached hereto marked Exhibit 1 and incorporated herein by reference, is hereby approved. 2. That the Mayor of the City of Carlsbad is hereby authorized and directed to execute said agreement for and on behalf of the City of Carlsbad. PASSED, APPROVED AND ADOPTED at a regular meeting of the City Council of the City of Carlsbad, California, held on the 2nd day of December }375, by the following vote, to wit: AYES: Councilinen Frazee, Chase, Lewis, Skotnicki and Councilwoman Casler. NOES: None. ABSENT: None-C -, ROBERT C. FRAZEE, MayoK ATTEST: L-,x,,-'l /S , £ts£^?i*''*^^' L' i /_.- " t^^&.'&'s*-" *-" MAR^ARfT E. ADAMS',Tcity Clerk