HomeMy WebLinkAbout2004-02-03; City Council; 17486; Cannon RD grade crossing NCTD license\B# 17,486
ATG. 2/03/04
IEPT. ENG I
TITLE: AMENDMENT TO NCTD LICENSE FOR DEPT. HD. & '
CITY ATTY. CANNON ROAD GRADE CROSSING
CANNON COURT (CUP 99-30)
RECOMMENDED ACTION:
Adopt Resolution No. authorizing the City Manager to execute the North San Diego
County Transit Development Board (NCTD) Amendment to License for the construction and
maintenance of median improvements within the Cannon Road grade crossing.
2004-035
ITEM EXPLANATION:
On July 10, 2001, the City Council approved a Conditional Use Permit for Cannon Court
(CUP 99-30) allowing for the construction of a gas station, mini-mart, hotel and two restaurants
on property generally located at the northwest corner of Cannon Road and Interstate 5 in
Local Facilities Management Zone 3.
The project was conditioned to install median improvements at the intersection of Cannon Road and
Avenida Encinas. The Cannon Road median on the westerly side of the intersection extends into the
railroad right-of-way. On May 19, 1970, the City Council entered into a License with the Atchison,
Topeka and Santa Fe Railway Company, predecessor to the NCTD, regarding the Cannon Road
grade crossing. In order to perform the work within the railroad right-of-way, NCTD requires an
amendment to the License. An exhibit was used in the original License that needs to be replaced.
The new exhibit shows the new median improvements. The developer will install the median as part
of the required improvements for the project.
Engineering staff has completed reviewing the improvement plans for the proposed improvements.
Prior to construction of the required public improvements, the amendment to the License needs to
be executed by the City. A copy of the Amendment to License and the original License are attached.
FISCAL IMPACT:
The developer has paid a plancheck fee to cover the expense of planchecking improvement plans,
and has also paid for the permit and inspection fees for the construction of the improvements.
The developer has paid all costs associated with the license agreement.
EXHIBITS:
1. Location Map.
2. Resolution No. 2004-035 authorizing the City Manager to execute the North San Diego
County Transit Development Board (NCTD) Amendment to License for the construction and
maintenance of median improvements within the Cannon Road grade crossing.
3. Amendment to License.
4. City Council Resolution No. 1731 dated May 19, 1970.
5. License dated June 22, 1970.
DEPARTMENT CONTACT: Frank Jimeno, (760) 602-2758, fiime@ci.carlsbad.ca.us
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RESOLUTION NO. 2004-035
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CARLSBAD, CALIFORNIA, AUTHORIZING THE CITY
MANAGER TO EXECUTE THE AMENDMENT TO LICENSE
BETWEEN THE CITY AND NORTH SAN DIEGO COUNTY
TRANSIT DEVELOPMENT BOARD.
WHEREAS, Conditional Use Permit CUP 99-30 with conditions, was approved by the
Planning Commission on May 16, 2001, pursuant to Resolution No. 4978 and by City Council on
July 10, 2001 pursuant to Resolution 2001 -209; and
WHEREAS, the conditions of approval for said Conditional Use Permit require the
2onstruction of public facilities within North County Transit Development Board property; and
WHEREAS, improvement plans for the required facilities have been reviewed by the City
and secured by West Development Inc., a Nebraska corporation, the owner; and
WHEREAS, on May 19, 1970, the City Council entered into a License with the Atchison,
Topeka and Santa Fe Railway Company, predecessor to the North County Transit Development
Board, pursuant to Resolution No. 1731 ; and
WHEREAS, prior to construction of the required facilities, North County Transit
Development Board requires the License be amended to include the new facilities; and
WHEREAS, the City Council of the City of Carlsbad determined it to be in the public
interest to authorize the City Manager to execute said Amendment to License.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Carlsbad,
California, as follows:
1.
2.
That the above recitations are true and correct.
That improvement plans for facilities required by said Conditional Use Permit
CUP 99-30 have been reviewed and secured and are on file with the Public Works Director.
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3. That the City Manager is authorized to execute the Amendment to License.
PASSED, APPROVED AND ADOPTED at a regular meeting of the Carlsbad City Council
ield on the 3rd day of February , 2004 by the following vote, to wit:
AYES:Council Members Lewis, Finnila, Kulchin, Hall and Packard
NOES: None
4TTEST
?age Two of Resolution 2004-035
(SEAL)
Y
23 1.04-0970-RD-CSBD
AMENDMENT TO LICENSE DUPLICATE
ORIGINAL
THIS AMENDMENT TO LICENSE (“Amendment”) is made effective
~&v---J\ 5, a009 by and between NORTH SAN DIEGO COUNTY
TRANSIT DEfrELOPMENT BOARD (“Licensor”) and CITY OF CARLSBAD
(”Licensee”) with reference to the following facts:
A. Licensor is a successor in interest to the Atchison, Topeka and Santa Fe
Railway Company.
B. Licensor and Licensee desire to amend the license referred to as Contract No.
133738, dated June 22, 1970, (the “License”).
01 THEREORE, Licensor and Licensee agree to amend the License as follows:
Exhibit “A” attached to this Amendment shall replace Exhibit “A”
attached to the License.
Executed by Licensor and Licensee as of the date first written above.
North San Diego County City of Carlsbad
Transit Pevelopment Foard
- ‘ Raymond R. Patchett I Executive lhrkctor City wager
APPROVED AS TO FORM:
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D U P tl C ATE 0 RIG I N A1
EXHIBIT 'A'
NORW SIN DI€GO COUNP TRANSIT D€V€LOPMENT BOARD
AND
Cl7Y OF CARLS6YD
SWTEM0ER 12, 2003
AIZACHED To CONTRACT BETWEN
.- IT FARR
Aff DEGO CWNR CAUL -' C.E.C.L. NO. 77-30754
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2710 Loker Avenue West Civil Engineering Suite 100 Planning Corlsbod. California 92008 Processing
760-931 -7700 Surveying
Fa~:760-931-8680
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SCALE: 1" = 60' CONSULTA TS
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RESOLUTION NO. 1721
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
BEHALF OF CITY OF A LICENSE WITH THE ATCHISON,
TOPEKA AND SANTA FE RAILWAY COMPANY REGARDING
CANNON ROAD GRADE CROSSING
CARLSBAD AUTHORIZING AND DIRECTING EXECUTION ON
The City Council of the City of Carlsbad does hereby resolvl .
as follows:
1, The Mayor of the City of Carlsbad is hereby authorized
and directed on behalf of the City to execute that
certain license with the Atchison, Topeka and Santa Pc
Railway Company regarding proposed Cannon Road grade
crossing of the Santa Fe tracks at approximate mile
post 231+1936.6.
PASSED, APPROVED, AND ADOPTED at a meeting of the City
Council of the City of Carlsbad, California, held May 19, 1970,
by the following vote, to wit: ,’
AYES: Councilmen Dunne, McComas, Jardine, Castro and Lewis.
M, DUNNE, Mayor o>the
City of Carlsbad
ATTEST :
7
(hereinafter, whether one party or more, called “Licensee”).
WITNESSETH, That the partiee hereto for the comiderations hereinafter expressed covenant and agree tw follows:
I. Licensor hereby licences Licensee to use, subject to the rights and easements hereinafter excepted and re- served and upon the terms and conditions hereinafter set forth, the land (hereinafter called “Premka”) situated at
made a part hereof, for a term beginning on---&Ul&iXCd ---------_----------., 19-20 -.-, and ending when this license shall be terminated aa hereinafter provided.
the right, to be exercised by Licensor and by any others who have ob- from Licensor 80 to do, (a) to operate, maintain, renew and relocate any 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 paragraph 6 hereof.
3. Licensee shall pay to Licensor as compensation for the use of the Premises the sum of-.----.
~r~~?pay~ble . .- iaxdvance;-Said-coxxpensation shall be subject- to -revision at .f ive=(5)+ea~
*dS.
the right to use any improvements now on the Premises shown or described on said Exhibit 4. kaee covenmta and.~~~~l~~~~r~b~in~~~the~~
, rates, and assessments which may, to or assessed in reapect aced in the general amount property of Licensor and Licensor shall r the amount or part of the tax, charge,
, 6. .Lic‘eneee shall use ‘the Premises exclusively as a Bitk for------- ____- _______
---------------_II--1____1____1___1_____------------------------------------------------------------.-.----_--_______-____-__________.__I---.--------.--
the object of Licensor being to facilitate the convenient operation of the railroad, telegraph and telephone linea of! Licensor, and the transaction of business thereon. In case Licensee shall use the Premises for any other purpose what- ever than above mentioned, then Licensor may declare this license at an end and prevent Licensee from using or re- maining upon the Premises, with or without process of law. Licensee shall not have the exclusive possesion of the Premises as against Licensor.
7. Licensee shall keep and maintain the Premises and Improvements in such safe, sanitary and aightly condition as shall be satisfactory to Licensor, ~~~y~~~~~~~n~the~’mprovements wi#ihqain-
approvedh~.&-; and if Liceme fa or refuses within !ifteen (15) days after receipt of any request by Licensor eo to do, Licensor may, at ita option, perform such work, and in such event Licensee shall within thirty (30) days after the rendition of
In Using the premiss, and in constructbg, maintaining, operating and Using the Improvementa thereon,
Licensee shall comply with any ad all requirements imposed by federal or state statutes, or by ordmances, orders, or regulations of my governmental body *ving jurisdiction thereover. In the event the Premises or Improve-
menh shall be used for the loading, unloadmg, storing, or otherwise handling of any petroleum products, Licensee shall comply nrith all regulations and recommendations from time to time promulgated by the Bureau of Explosives of the kociation of American Railroads, or any successor agency. All artificial kghting in pump houses, warehouses, or other enclosures upon the Prem+es, where oil or other inflammable fluid supplip 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 paragraph hereof.
9. Licensee shall at all times keep a space of* &fee rom the nearest rail of any railroad track entirely clear of structures, material and obstructions of every sort and shall observe an overhead clearance of not leas than twenty- five (25) feet above the top of rail; ~,&heleas,-Licensee may erect loading pla,tfom which shall.not&emmne tke&hree~<3);feet.andsix.(b)inches higher than the top of the raiband which at no point shall be nearer thadour (weet1d.o the nearest side of the head of the neareat rail of such track; provided, however, if by statute or order of competent public authority-clearances shall be required, then Licensee shall strictly comply with such statute or order. greater
10. Licensee agreeto indemnify masave hapless- Licensor again& all Igjs,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 messed against Licensor, arising in any mmner out of (s) the use of the Premises or Improvements by Licensee, (b) any breach by Licensee of the terms, covenants or conditions in thia 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.
11. 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.
12. In caae of the eviction of Licensee by any one owning or claiming titIe 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.
If any compensation hereunder shall be due and unpaid, or if default shall be madeh any of the covenante or agreements of Licensee herein contained, or in case of any assignment or transfer of thS 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.
14. This license may be terminated at any time by 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 de- termine; but upon any such termination Licensee shall be entitled to have refunded by Liceneor a proportionate part of any compensation paid in advance.
therefor reimburse Licensor for the cost 90 incurred.
8.
(14 sev
13.
15. Any notice to be given by Licensor to Licensee hereunder ahall be deemed to be properly served if the Earn be delivered to Licensee, or if left with any of the agents, servanta or employes of Licensee or if posted on the
or if deposited in the Post Office, postpaid, addressed to Licensee at rm ~~ii ciu2Li-
---I- -----1__1.---.
‘16. Upon the $mnination of this license in any manner herein provided, Licensee shall forthwith surrender to Licensor the posaetlision of the Remima and ehall remove the Improvementa and reatore the Premises to substantially sthe date in which they were prior to the construction of the Improvements, 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 dectionzto be exercised within thirty (30) daya thereafter, either remove the Improvements and restam the Prerm~ee . for the account of Licensee, and in such event Licensee shall within thirty (30) dam after the rendition of bill therefor! Ikenaor for the cost p incurred, or may take and hold the Iinprovements aa its aole property. I”
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17. If Licensee fails to surrender to Licensor the Premises, upon any termination of this lici?nse, all the liabilities =.and obligations of Licensee hereunder skll Yntbue in effect until the Premises are surrendered; and no termhation hemf shall release Licensee from any habihty ?r obligation hereunder, whether of indemnity or otherwise, resulting from any acta, omissions or eventa happening pno? to the date of termination or the date, if later, when the Improve- menb are -moved and the Re& restored or Licensor electa to take and hold the Improvements as ita sole property aa hereinabove in paragraph 16 provided.
18. In the event that Licensee consists of two or more parties, 811 the covenanta and agreement8 of Licensee herein contained shall be the joint and several covenants and agreements of such parties.
19. All the covenant8 and agreements of Licensee herein contained shall be binding upon the Km, legal repre- sentatives, sucoe88ora and aasigns of Licensee, and shall inure to the benefit of the successom and sasigna of Licemr.
20. The improvement of said Avenue within the portions of the premises occupied
by railroad trackage shall. conform with plans and specifications approved by the
parties hereto and shall be subject to the terms and conditions of an agreement to
be entered into by the parties hereto.
21. This license is subject to all valid and existing contracts, leases, licenses, conditions, restrictions, easements and encumbrances which may in any
wise affect the Premises, or the title thereto.
22. This license is given on the understanding that Licensee will hereafter, without unnecessary delay, negotiate with Licensor, and any other person, if any, having any right, title or interest in the Premises, to agree upon termsr-and
conditions of an easement in form satisfactory to Licensor covering use of Premises for said purpose.
l[N WITNESS WHEBEOF, Thie license haa been duly executed in duplicate by the parties hereto aa of the day and year 6rst above written.
Approved as to description : By,,-
Ib .--- ---_- ' --. - - --.
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