HomeMy WebLinkAbout1986-01-07; City Council; 8452; Entry License for Washinton St Improvements.Q
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TITLE:
WASHINGTON STREET IMPROVEMENTS CITY MGR.&
Adopt Resolution No. f32L
Washington Street Improvements and authorizing the Mayor to sign the license
on behalf of the city.
accepting the Right of Entry License for the
ITEM EXPLANATION:
Washington Street Improvement plan is designed to construct a 400' x 24' asphalt
concrete pavement from Elm Avenue to Oak Street with concrete cement curb,
gutter and a 5' meandering sidewalk along the west side of the street and an
asphalt concrete berm along the east side.
right-of-way to complete the desired project.
provides the needed right-of-way.
The city requires 15' of railroad
The right of entry license
FISCAL IMPACT:
The cost of the right of entry license is $400.00.
available in the Washington street Fund, Account No. 150-820-1840-3722.
Sufficient funds are
EXHIBITS :
1. Right of Entry License
2. Location Map
3. Resolution No. 82 2
Coordination copy to:
1. City Engineer
2. Redevelopment 3. Purchasing
RIGHT OF WTRY LICWSLt
11003243-25
THI8 LIUBU8B, made as of the 25th day of Povember 1985, between
THE ATCHISOM, TOP= bM) SAUTA FB RAILWAY COMPAHY, a Delaware corporation,
(hereinafter called "Licensor"), and CITY OF CARLSBAD, a municipal
corporation (hereinafter, whether one party or more, called "Licensee").
MITWBSSBTH, That the parties hereto for the considerations hereinafter expressed
covenant and agree as follows:
1.
2.
3.
4.
Liceneor hereby licenses Licensee to use, subject to the rights and easements hereinafter excepted and reserved and upon the terms and conditions bereinafter 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, ffo. 1-04685,
dated October 15, 1985, marked "Exhibit A" and made a part hereof, for a term
besinning on December 1, 1985, and ending when this License shall be terminated as hereinafter provided.
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, (a1 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.
Licensee ahall pay to Licensor as compensation for the use of the Premises the sum of Four Wndred and ffo/lOO Dollars ($400.00).
(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/H78 - 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 (3) 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.
Hotwithstanding 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
88s\m\B 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.
It is understood and agreed that a Licensee who does not now, or in the future,
generate, handle, transport, treat, store or dispose of %azardous waste" or
"hazardous substances" within the meaning of this Section, is not subject to
the provisions of Subsection (b) supra.
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. 10183 (1617-RE/CD64a/H78 -2-
federal or state statutes, or by ordinances, orders or regulations of any
governmental body having jurisdiction thereover. In the event the Praises or
improvements shall be used for the loading, unloading, storing, or otherwise handling of any petroleum products, Licensee shall comply with all regulations and
reconrmendations 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, uarehouses, or other enclosures upon the Premises, where oil or
other inflanmurble 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 Yational 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 ehall 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 tern,
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
lO(CS, damage or expense arising therefrom shall be borne by the parties hereto
equally.
9. Ueither 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. 10183 (1617-RE/CD64a/l478 - 3-
11. Motwith8tanding any other provisions of this License, Licensee shall camply with all
atatutes, 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.
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.
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 8nd 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.
In its use of the premises,
In the
Upon written notice from Licensor, Licensee agrees to assume the defense of any
lamit, 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 andlor 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-RWCD64a/l478 -4-
13. Tbia Licens e may be terminated at any time by either Party upon thirty (30) days*
tice 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 Ekemises, and in case Licensee shall fail within
thirty (30) day8 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, missions 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 13 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. Licenaee 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/I478 -5-
..
.* *
furnished ti) regular Contractors* Public Liability Insurance Kith 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 Hillion Dollars ($1,000,000) for all liability arising aut 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.
contractors and subcontractors shall be named insureds either in a single policy of
ihsurance complying with the requireanents of this Section or in meparate
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.
Licensee and all its
21. Licen8ee alp3es to furnish or arrange to have furnished to Licensor certificates
reflectiry the insurance coverage or certified copy of insurance policy, if requested by Licensor, as required by Section 20 hereof.
the coverage required by Section 20 shall unqualifiedly require thirty (39)
days' notice to Licensor of cancellation or modification of the insurance referred to in such certificates.
Certificates reflecting
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.
XU YfillEBS UHBRBO?, this License has been duly executed, in duplicate, by the parties hereto 88 of the day and year first above written.
THE AlcHI8olr, TOPEKA AUD SAETA 111 R4rLuAY CxHBbBy One Santa Pe Plaza
5200 B. Sheila Street
Los Angeles, CA 90040
Its
CITY OF CaRLSBAD
2965 Roosevelt Street, Suite B
Carlsbad, CA 92008
4 3 34 8Ch*
Rev. 10/83 (1617-RE/CD64a/l¶78
Its
(Licensee)
-6-
.. mjb * A - SECY’S NO.
EXHIBIT “A”
THE ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY
CITY OF CARLSBAD
ATTACHED TO CONTRACT BETWEEN
AND
w. C. wEee CHICAGO, ILLINOIS ------- ---- -- SCALE: 1 IN. TO 100 FT. CHIEF ENGINEER DIV. DESCRIPTION APPROVED LOS ANG€L€S
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AT CARLSSAD, SAN D/€GO COL/” CAL/FOPN/A . C.E. DRAWING NO. 1 - 04685 .--
DIV. DWG. NO. DIV. FILE NO. G.M. FILE NO. //*03243 C.E. FILE NO. 64-052-0063
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RESOLUTION NO. 8322
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD,
CALIFORNIA, ACCEPTING RIGHT OF ENTRY LICENSE FOR THE WASHINGTON STREET IMPROVEMENTS
WHEREAS, the City Council of the City of Carlsbad, California, has
Jetermined that it is necessary and in the public interest to improve
Jashington Street between Oak Street and Elm Avenue; and
WHEREAS, a Right of Entry License has been offered by the Atchison,
Topeka and Santa Fe Railway Company for the necessary right-of-way for
improvements on Washington Street;
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Carlsbad
as follows:
1. The above recitations are true and correct.
2. The Right of Entry License is approved.
3. The Mayor of the City of Carlsbad is hereby authorized to sign the
license on behalf of the city.
PASSED, APPROVED AND ADOPTED at a regular meeting of the City Council
of the City of Carlsbad held on the 7th day of , 1986, by the
following vote, to wit:
AYES:
NOES: None
Council Members Casler, Lewis, Kulchin, Chick and Pettine
ABSENT: None
ATTEST:
ALETHA L. RAUTENK
(SEAL)