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HomeMy WebLinkAbout1991-11-05; City Council; 11420; APPROVE LICENSE AGREEMENT WITH ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY FOR THE HOME PUMP STATION & FORCE MAIN PROJECTQ w > 0 a: a a 4 z .. z a G e z 2 0 0 WI ur bnnL3Dnu - nu CIA u ILL ". \H DEPT. 1 MTG. 11/05/91 CITY M DEPT. ENG: MP CITY A ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY FOR THE HOME PLANT PUMP STATION & FORCE MAIN PROJECT RECOMMENDED ACTION: Adopt Resolution No.~/dL~C~ approving a License Agreement with the Atchi Topeka and Santa Fe Railway Company (AT&SF) for construction of the Home Plant Station and Force Main Project. ITEM EXPLANATION: The City Council previously adopted Resolution No. 91-300 awarding a contracl construction of the Home Plant Pump Station and Force Main Project. A portic the Home Plant Force Main will be constructed within right-of-way owned bq AT&SF Railway Company. The attached AT&SF standard License Agreement allow! City to proceed with the installation of the force main within the AT&SF righl way, and authorizes AT&SF to inspect the work during construction. ' Staff recommends approval of the License Agreement. FISCAL IMPACT: The agreement requires the City to remit $750.00 to AT&SF as compensation fol administration of the License Agreement. Adequate funds are available ir project account. AT&SF inspection of City facilities for this project will nl required. EXHIBITS: 1. Resolution No. 9 I - 3kf c;. approving a License Agreement between the Ci. Carlsbad and the Atchison, Topeka and Santa Fe Railway Company construction of the Home Plant Pump Station and Force Main Project. 2. License Agreement with the Atchison, Topeka and Santa Fe Railway Comp' 1 a 0 1 RESOLUTION NO. 91-360 2 3 4 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA, APPROVING A LICENSE AGREEMENT AGREEMENT BETWEEN THE CITY OF CARLSBAD AND THE ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY FOR CONSTRUCTION OF THE HOME PLANT PUMP STATION AND FORCE MAIN PROJECT ~ 5 6 7 8 9 10 11 12 13 14 15 16 17 18 WHEREAS, the City Council of the City of Carlsbad does hereby reso foll ows : 1. A License Agreement between the City of Carlsbad and the Atc Topeka and Santa Fe Railway Company for construction of the Home P1 an' Station and Force Main is hereby approved. 2. The Mayor of the City of Carl sbad is hereby authorized and di to execute such agreement for and on behalf of the City of Carlsbad. Fol the execution of this agreement, the City Clerk is authorized and direc return the "Santa Fe Original" copy of this agreement to the Municipal Pr Department for further processing. PASSED, APPROVED AND ADOPTED at a regular meeting of the Carlsbz Council held on the 5th day of November , 1991 by the followin! to wit: 19 I 20 21 22 23 24 1 AYES: Council Members Lewis, Larson, Stanton and Nygaard NOES: None ABSENT: Council Member Kulchin 27 28 SANYA EE OXiGINAL 0 1 100201 6 PIPE LINE LICENSE THIS LICENSE, Made this 3rd day of September, 1991, between TH~ (hereinafter call ed "Licensor"), party of the first part, and CIN 0 CARLSBAD, CALIFORNIA, a municipal corporation of the State of Cal ifornil (hereinafter, whether one or more, called "Licensee"), party of the secon part. ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY, a Delaware corporatiol WITNESSETH, That the parties hereto for the consideratio hereinafter expressed covenant and agree as follows: 1. Subject to the terms and conditions hereinafter set forth Licensor 1 i censes Licensee to construct and maintain one (1 1 pipe 1 i ne, te (10) inches in diameter (hereinafter, whether one or more pipe lines, calle the "PIPE LINE"), across or along the right-of-way of Licensor at or near th station of Carlsbad, San Diego County, California, the exact location of th PIPE LINE being more particularly shown by bold 1 ine upon the print heret attached, No. 1-01201, dated August 27, 1991, marked "Exhibit A" and made part hereof. 2. Licensee shall use the PIPE LINE solely for carrying sewage an shall not use it to carry any other commodity or for any other purpos whatsoever. (a) Licensee covenants that it wi 11 not handle or transpor through the PIPE LINE on Licensor's property "hazardous waste" or "hazardou substances", as "hazardous waste" and "hazardous substances" may now or in th future be defined by any federal, state, or local governmental agency c body. In the event the Pipe Line is now or in the future used in handling, c transporting of "hazardous waste" or "hazardous substances", Licensee agrec fully to comply with all applicable federal, state, and local laws, rules regulations, orders, decisions and ordinances (hereinafter referred to z "Standards") concerning "hazardous waste" and "hazardous substances' Licensee further agrees periodically to furnish Licensor with prool satisfactory to Licensor, that Licensee is in such compl iance. Shoul Licensee not comply fully with the above-stated obligations of this Sectior notwithstanding anything contained in any other provision hereof, Licensc may, at its option, terminate this License by serving five (5) days' notice ( Licensee's obligations shall not constitute a waiver of the right to terminai thi s License for any subsequent breach which may occur, or to enforce at other provision of this License. Upon termination, Licensee shall remove tl PIPE LINE and restore Licensor's property as herein elsewhere provided. termination upon Licensee: but any waiver by Licensor of any breach ( 3-4-85-1 658/210V e 0 (b) Notwithstanding anything contained in the 1 iabi 1 i ty sectiol hereof, in case of a breach of the obligations contained in this Section, o' any of them, regardless of the negligence or a1 leged negligence of Licensor Li censee agrees to assume 1 iabi 1 i ty for and to save and hold harm1 ess Li censo from and against a1 1 injuries to any person and damage to property, i ncludins without 1 imitation, employes and property of Licensor and Licensee and a1 re1 ated expenses , including without 1 imitation attorneys I fees , investigators fees and litigation expenses, resulting in whole or in part from Licensee' failure to comply with any Standard issued by any governmental authori t concerning "hazardous substances" and/or "hazardous waste". Li censee, at it cost, shall assume the defense of a1 1 claims, suits or actions brought fo damages, and fines or penalties hereunder, regardless of whether they ar asserted against Licensor or Licensee. Licensee also agrees to reimburs Licensor for a1 1 costs of any kind incurred as a result of the Licensee' failure to comply with this Section, including, but not limited to, fines penal ties , clean-up and disposal costs , and legal costs incurred as a resul of Licensee's hand1 ing, transporting, or disposing of "hazardous waste" c "hazardous substances" on the property of Licensor. (c) It is understood and agreed that a Licensee who does nc now, or in the future, generate, handle, transport, treat, store or dispose c on Licensor's property "hazardous waste" or "hazardous substances" within tt meaning of the Section, is not subject to the provisions of Section 2 (t hereof. 3. Licensee shall pay Licensor as compensation for this license tt sum of Seven Hundred Fifty and No/100 Dollars ($750.00). 4. Licensee shall, at its own cost and subject to the supervisic and control of Licensor's chief engineer, locate, construct and maintain tt PIPE LINE in such a manner and of such material that it wi 11 not at any tir be a source of danger to or interference with the present or future track! roadbed and property of Licensor, or the safe operation of its rai 1 road. 1 cases where the Licensee is permitted under paragraph 2 hereof to use the PI1 LINE for oi 1 , gas. petroleum products. or other flammable or hiqhl y volati ' thereafter maintained in conformity with the plans and specifications shown { print hereto attached in such cases, marked Exhi bit B and made a part hereo. If at any time Licensee shall, in the judgment of Licensor, fail to perfo? properly its obligations under this paragraph, Licensor may, at its optiol itself perform such work as it deems necessary for the safe operation of i, rai 1 road, and in such event Licensee agrees to pay, within fifteen (15) da: after bill shall have been rendered therefor, the cost so incurred I Licensor, but fai 1 ure on the part of Licensor to perform the ob1 igations ( Licensee shall not release Licensee from liability hereunder for loss 1 damage occasioned thereby. substances under pressure, the PIPE LINE shai 1 be constructed, installed a1 5. Licensee shall reimburse Licensor for any expense incurred Licensor for fa1 se work to support Licensor's tracks and for flagman protect its traffic during instal lation of the PIPE LINE and for any and a other expense incurred by Licensor on account of the PIPE LINE. -2- 3-4-85-1658/210V e 0 6. Licensee shall at a1 1 times indemnify and save harm1 ess Licensol against and pay in full a1 1 loss, damage, or expense that Licensor ma! sustain, incur or become liable for, resulting in any manner from thc construction, maintenance, use, state of repair, or presence of the PIPE LINE including any such loss, damage or expense arising out of (a) loss of 0' damage to property, (b) injury to or death of persons, (c) mechanics' or othe, liens of any character, or (d) taxes or assessments of any kind, It is thl intention of the parties that Licensor's right to indemnity hereunder shall bl Val id and enforceable against Licensee regard1 ess of negligence (whethe active, passive, derivative, joint, concurring or comparative) on the part o Licensor, its officers, agents and employees. 7. If at any time Licensee shall fail or refuse to comply with o carry out any of the covenants herein contained Licensor may at its electio forthwith revoke this 1 i cense. 8. This 1 i cense is given by Licensor and accepted by Licensee up0 the express condition that the same may be terminated at any time by eithe party upon ninety (90) days' notice in writing to be served upon the othe party, stating therein the date that such termination shall take place, an that upon the termination of this license in this or any other manner herei provided , Licensee, upon demand of Licensor, shall abandon the use of the PIP LINE and remove the same and restore the right-of-way and tracks of Licenso to the same condition in which they were prior to the placing of the PIPE LIN thereunder. In case Licensee shall fai 1 to restore Licensor's premises a aforesaid within ten (10) days after the effective date of termination Licensor may proceed with such work at the expense of Licensee. N termination hereof shall re1 ease Licensee from any 1 iabi 1 i ty or ob1 igatic omissions or events happening prior to the date the PIPE LINE is removed ar the right-of-way and track of Licensor restored as above provided. hereunder, whether of indemnity or otherwise, resul tin! from any acts 9. In the case of the eviction of Licensee by anyone owning c obtaining title to the premises on which the PIPE LINE is located, or the sal or abandonment by Licensor of said premises, Licensor shall not be 1 iabl e 1 Licensee for any damage of any nature whatsoever or to refund any payment ma( by Licensee to Licensor hereunder, except the proportionate part of at recurring rental charge which may have been paid hereunder in advance. 10. Any notice hereunder to be given by Licensor to Licensee sha' be deemed to be properly served if it be deposited in the United States Mai' postage prepaid, addressed to Licensee at 2075 Las Palmas Drive, Carl sbac Cal i fornia 92009-1 51 9. Any notice to be given hereunder by Licensee ' Licensor shall be deemed to be properly served if the same be deposited in tl United States Mai 1, postage prepaid, addressed to Licensor's Manager ( Contracts at P. 0. Box 1738, 920 S. E. Quincy Street, Topeka, Kansas 66612. 11. In the event that two or more parties execute this instrument i Licensee, a1 1 the covenants and agreements of Licensee in this 1 icense sha' be the joint and several covenants and agreements of such parties. - -5- 3-4-85-1 658/210V 0 0 12. All the covenants and provisions of this instrument shall bl binding upon and inure to the benefit of the successors, legal representatives and assigns of the parties to the same extent and effect as the same arl binding upon and inure to the benefit of the parties hereto, but no assignmen hereof by Licensee, its successors, legal representatives or assigns, or an subsequent assignee, shall be binding upon Licensor without the writte consent of Licensor in each instance. 13. Notwithstanding any other provi sions of this 1 i cense, License shall comply with a1 1 statutes, ordinances, rules, regulations, orders an decisions (hereinafter referred to as "Standards"), issued by any federal state or local governmental body or agency established thereby (hereinafte referred to as "Authority"), relating to Licensee's use of Licensor's propert hereunder. In its use of the premi ses, Licensee shall at a1 1 times be in ful compliance with all Standards, present or future, set by any Authority including, but not 1 imi ted to, Standards concerning air quality, wate quality, noise, hazardous substances and hazardous waste. In the even Licensee fai 1 s to be in full compliance with Standards set by any Authori tj Licensor may, after giving reasonable notice of the fai 1 ure to Licensee, ar Licensee, within thirty (30) days of such notice, fai 1 s either to correct suc non-compl iance or to give written notice to the Licensor of its intent 1 contest the a1 legation of non-compliance before the Authority establishing tk Standard or in any other proper forum, take whatever action is necessary 1 protect the premises and Licensor's railroad and other adjacent propert) Licensee shall reimburse the Licensor for a1 1 costs (including but not 1 imi tt to, consulting, engineering, clean-up and disposal costs, and legal cost! incurred by the Licensor in complying with such Standards, and also such cos1 incurred by the Licensor in abating a violation of such Standards, protecti t against a threatened violation of such Standards, defending any claim ( violation of such Standards in any proceeding before any Authority or cour' and paying any fines or penal ties imposed for such violations. Licensee sha' assume liability for and shall save and hold harmless the Licensor from a1 claim of a violation of such Standards regardless of the nature thereof or tl Authority or person asserting such claim, which results from Licensee's use ( Licensor's premises, whether such claim arises in whole or in part from tl negl igence or a1 1 eged negligence of the Licensor or otherwise. Licensee, l its cost, shall assume the defense of a1 1 such claims regardless of wheth they are asserted against Licensee or Licensor. 14. Upon written notice from Licensor, Licensee agrees to assume t' defense of any lawsuit, administrative action or other proceeding brougl against Licensor by any public body, individual, partnership, corporation, 1 other 1 egal entity, relating to any matter covered by this License for whi Licensee has an obligation to assume liability for and/or to save and ho harmless the Licensor. Licensee shall pay all the costs incident to su defense, including, but not limited to, attorneys' fees, investigators' fee litigation expenses, settlement payments, and amounts paid in satisfaction 1 judgments. Any and all lawsuits or administrative actions brought threatened on any theory of re1 ief available at law, in equity or under t rules of any administrative agency shall be covered by this sectio including, but not limited to, the theories of intentional misconduc negligence, breach of statute or ordinance, or upon any theory created statute or ordinance, state or federal. -4- 3-4-85-1 658l21OV 0 0 IN WITNESS #HEREOF, the parties have executed this agreement in duplicate the day and year first above written. THE ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY BY - " PIS&. 'L- \I Title Mrtager of cmtracte CITY OF CARLSBAD, CALIFORNIA BY Title ./ AT & SF RY. 60. -5- 3-4-85-1658/210V/7555d/2228/lt - I- EXHIBIT \'A'' I - I ATTACHED TO CONTRACT BETWEEN THE ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY AND City of &r/3bad WesSprn RP9;on \ V - '718 Son nipon SUBDIV. aw See. I TOPEKA, KANSAS TIZS /?SI SCALE: 1 IN.TO 100 FT. DATE: guqusf 27, 19% go \ To Fur lerfon - DESCRIPTION OF PIPELINE PIPELINE SHOWN BOLO - - CARRIER CAW PIPE PIPE CARRIER CASU PIPE PIP! - SIZE: CONTENTS: " WORKING PRESSWE: ~TCC mad PIPE MATERIAL: BURY: BASE/RAIL TO TOP OF CAW - SPECIFKATKm / GRAD€: BURY: NATWAL GROUNO IB WALL 1HK;KNESS: &/? 'I BURY: ROADWAY DITCHES COATINO: CATHOMC PROTECTION - VENTS: NUMBER Nh SlzF - HEIGHT OF VENT ABOVE GROUND - U EJ/A LENGTH ON R/W: 1.2 0' 2 EJ/: c - 900 e - - - - At Corkbad, NOTE: CASING TO BE JACKED OR DRY BORED ONLY m i In, San Dieqo County, California A.M DRAWING NO. 1 - d/z DIV. DWG NO. DIV. FILE NO. G. M. FILE NO. t/00.20/6 /t