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HomeMy WebLinkAbout1981-05-19; City Council; 6275-3; AT&SF Railway Pipe Line License Agreement1. . I *I- -.-- CITY OF CARLSBAD Initial : Dept. Head 1 C. Atty "3 AGENDA BILL NO. 62 75 -Lu DATE : Hay 19, 1981 + DEPARTMENT: Engineering C. Mgr. -.~ SUBJECT: AT&SF RAILURY PIPE LINE LICENSE AGREEEENT FOR CARLSBAD TRACT 80-1 5(A) IMPROVEYENTS STATEMENT OF THE MATTER As part of the development of Carlsbad Tract 80-15(A), Carlsbad Commercial Center, the developer is reqtiired to install a storm drain line from the project site across the AT&SF Railway right-of-way and into Cannon Lake. 'In order to accomplish this the developer has obtained il Pipe Line License Agreement from the Eailway Company which will allow the City to install and maintain a drainage pipe line across their right-of-way for the sum of $150. The developer has agreed to enter into an agree- ment whereby they will pay the $150 fee and hold harmless the City from any liability resulting as a consequence of the City entering into this license agreement. order to begin construction, the City must enter into the attached Pipe Line License Agreement. have been completed by the developer and approved by the City and are on file with the Engineering Department. In Improvement blans detailing the construction of this storm drain line FISCAL IVPACT There will be no initial ffscal impact to the City since the developer will construct the pipe line and pay the $150 fee to the railroad. accepted by the City, there will be a need to incorporate the maintenance of this line in with the rest of the City's maintenance operatfons. Once the improvements are ENVIRONMENTAL IFIPACT All environmental concerns have been mitigated in accordance with the Environmental Assessment made on this project site. RECOMl!ENDATION Approve Resol utior! No. (ix15'37 and Resolution No. b3-3F - EXHIBITS 1, Location Flap 2. Letter from the AT&SF Railway Company dated April 27, 1981. 3. Pipe Line License Agreement. 4. 5. 6. Agreeiiieni between the City of Carlsbad and Carlsbad Commercial Center. Resolution No.& - s'f7approvinq the Agreement between the City and Carl sbad Resolution Fi0.6S3g approving the Pipe Line License Agreement and authorizing Commercial Center and authorizing City rlanager to sign on behalf of the City. the City Manager to sign on behalf of the City. _- PIPE LINE LICENSE SITE LOCATION EXHIBIT 1 The AtchisonJopeka and anta Fe Railway Company A Santa Fe Industries Company One Santa Fe Plaza, 5200 East Sheila Street, Los Angeles, California 90040 2131267-5228 April 27, 1981 File: B0-70015-22 Williamson and Schmid 17782 Sky Park Boulevard Irvine, CA 92714 Attn: Jene E. Lyle Gentlemen: Please refer to your file, ending with letter of April 16, 1981, concerning storm-drain crossing for your Job No. 79298. Enclosed are duplicate copies of License Agreement in favor of the City of Carlsbad, covering installation of a 36-inch water storm drain at Farr, California, with provision to cancel existing Contract No. 55750 under Section 20 of the Document. it will be necessary that complete jacking equipment and procedures be submitted for approval as well as continuous installation inspection by Railroad. The 5-foot cover will be satisfactory; however, Please have this Document executed by an official authorized by the City to do so, furnish evidence of authority for its execution, and affix the seal. Both copies, together with payment of $150 for license fee, should be returned to this office for completion, after which a fully executed copy will be returned. Also enclosed are three (3) copies of long-form Save Harmless Agreement and Surety Bond forms, together with instructions for completing the contractor's letter agreement and securing proper insurance to comply with Paragraphs 17 and 18 of the License Agreement, dated April 1, 1981. Please have the contractor return the Save Harmless Agreement, in duplicate, to this office with certificate for evidence of contractor's liability insurance and the original copy of Railroad Protective Policy. If there are any questions, you may contact Mr. J. H. Schwartz, of my office, at the above-listed telephone number. Very truly yours, H. D. Fish, General Manager BY M. W. Lloyd Supervisor of Codtracts I cc : Mr. D. G. McInnes, Superintendent The AT&SF Railway Company San Bernardino, CA 3 2 3 4 fi U E 7 E! 9 1c 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RESOL!!TICFI NC. 6537 A RESOLIITIClfl OF THE CITY CCUNCIL OF THE CITY OF CARLSBAD, CALIFORCIA, APPROVIMC AN AGREEMENT EET!(,rEEFI THE CITY Al4D CARISBAD CO:!!lERCIAL CENTER AND AUTHORIZING THE CITY %”,ACE!? - TO sxr: THE RGREEMENT ON BEHALF OF THE CITY. WHEREAS, thz City Engineer of the City of Carlsbad hzs determined ft is necessary for the developer of CT 80-15(A), Carlsbad Commercial Center, to ivstall 5 stsrm dra:’n pipe line across the AThSF Railway rivht-of-way for the purpose of conducting drainage away from the above mentioned subdivision devel opmen t ; and .. WHEREAS, this storm drairi pipe line will, upon completion of its con- struction, b2 accepted for maintenance by the City of Carlsbad; and NHEREAS, the City of Carlsbad must enter into a Pipe Line License’ Agreement with the ATetSF Railway Ccmpany as a condition precedent to their allowing the construction of this storm drain pipe line across their right-of- way; and !?IHEREAS, the City requires that the developer enter into an agreement whereby they agree to pay all fees involved in obtaining the license agreement. and obtain all the necessary insurance in satisfactioz of the license agreement and hold the City harnless from any liability resulting from their entering into the above mentioned 14cetise agrzement; and WHEREAS, plans ,for the constructien of this storm drain pipe line have been approved by the City Engineer and are on file with the Engineering Depart- ment; NOW, THEREFORE, be it resolved by the City Council of the City of Carlsbad as follows: 1. The above recitations are true and corrzct. 2. Agreement between Carlsbad Comercia1 Center and the City, attached hereto and made a part hereof, is hereby approved. i 2 2 4 E t 7 E 5 1c 11 1% 12 14 15 16 17 18 19 20 21 22 23 24 25 26 27 20 3. The City Manager is hereby authorized to sign the Agrsement mentiowd above gn behalf of the City. PASSCD, !?PPROVED AND ADOPTED by the City Council of the City of Carlsbad at a regular meeting held the xch day of ay , 1981 by the following vote, to wit: AYES: NOES: None Council Mahers Packard, Casler, An&, Kulchin ABSENT: Council Mer Lewis - ATTEST: (SEAL) 1 4 AGREEMENT BETWEEN CITY OF CARLSBAD AND CARLSBAD COMMERCIAL CENTER FOR THE INSTALLATION OF A STORM DRAIN ACROSS . AT & SF RAILWAY RIGHT-OF-WAY This agreement is entered into this )q4 day of *A+)/' 1981 between City of Carlsbad, a Municipal Corporation (hereinafter called "City"), and Carlsbad Commercial Center, a general partnership (hereinafter called "Developer"). 1. 2. 3. 4. e * RECITALS Developer is developing Carlsbad Tract 80-15(A) as approved by the City. As a condition of approval of Carlsbad Tract 8015(A) Developer is required to install a storm drain from the ' project site, across the Atchison, Topeka and Santa Fe ("AT & SF") Railway right-of-way, to Cannon Lake ("the storm drain"). The storm drain is necessary to provide drainage for said tract. For Developer to install the storm drain as required it is necessary for City to obtain from AT & SF Railway certain property rights. AT & SF Railway will'convey to City for the sum of $150.00 (One Mundred and Fifty Dollars), a license to install and maintain the storm drain across the AT & SF Railway right-of- way. The license is subject to certain terms and conditions. City is willing to accommodate Developer and *+&- accept the license provided Developer assumes the responsibility for said terms and conditions.. -2- 6. City will not accept the license or enter into a license agreement with AT & SF Railway unless Developer agrees to assume all City's obligations under such a license agreement and to indemnify and hold City harmless for any liability of the City under such license or license agreement. 7, Developer desires to assume City's obligations under such license or license agreement and to indemnity and hold City harmless from any liability arising because of such' license or license agreement, Therefore, in consideration of the recitals and the mutual covenants contained herein City and Developer agree as follows: 1) City agrees to enter into that certain "Pipe Line License" (BO-70015) between AT 6 SF Railway and City, a copy of which is attached hereto and made a part hereof (hereinafter called **License"). 2) Developer agrees to assume and hereby assumes all City's obligations, whether present or future, including payment * of any fees or charges including insurance, under said License. 3) Developer agrees to indemnify and hold harmless City for any liability of City resulting from said License. -3- ')*., #.'City Clerk '.. APPBO'VED A$ TO FORM: Daniel S .-'BgmtYschkt Assistant Crty Attc CITY OF CARLSBAD ?- By : Frank Aleshire City Manager CARLSBAD COMMERCIAL CENTER, A GENERAL PARTNERS- William A. Budge, a Generafiartner On My 14, 1981, before m, the undersigned, a Notary Public in and for said State personally appeared William A. Budge, known to rne to be a Gmeral Partner of Carlsbad Partners, a General Partnership, said Partnership being known to me to be General Partner of Carlsbad Corrnnercial Center Partners, the General Partnership that executed the within instruI.tlent and acknowledged to me that he executed the sarre as a General Partner of the Partnership first ahve naned, and that said Partnership executed the same as General Partner of Carlsbad Corrmercial Center Partners, a Wsral Partnership and that said last n& Partnership executed the same. WITNESS my hand and official seal. .I 1 2 3 4 5 6 7 a 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RESOLUTION NO. A RESOLUTION OF THE CITY COU 6538 ICIL OF THE CITY OF RLSB D, CALIFOIIEIIIA, APPROVING A PIPE LINE LICEPISE AGREEFIENT WITH THE ATbSF RAILNAY COMPANY AND AUTHORIZING THE CITY MANAGER TO SIGN THE AGkEEMENT ON BEHALF OF THE CITY. WHEREAS, the City Engineer of the City of Carlsbad has determined it is necessary for the developer of CT 80--15(A), Carlsbad Commercial Center, to install a storm drain pipe line across the ATbSF !?ailway right-of-way for the purpose of conducting drainage away from the 'above mentioned subdivision development; and WHEREAS, this storm drain pipe line will, upon completion of its con- struction, be accepted for maintenance by the City of Carlsbad; and WHEREAS, the ATbSF Railway Company requires that the City of Carlsbad enter into a Pipe Line License Agreement with them as a condition precedent to their allowing the construction of this storm drain pipe line across the,r right-of-way; and !/HEREAS, plans for the construction of this storm drain pipe line have been approved by the City Engineer and are on file with the Engineering Department; NOW, THEREFORE, be it resolved by the City Council of the City of Carl sbad as follows: 1. The above recitations are true and correct. ' 2. The Pipe Line License Agreement, attached hereto and made a part hereof, is hereby approved. The City Manager is hereby authorized to sign the Pipe Line 3. Agreenient mentioned above on behalf of the City. PASSED, APPROVED AND ADOPTED by the City Council of the City of Carlsbad xx xx ., 1 '2 3 4 5 6 7 a 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 c at a regular meeting held the 19thday of my , 1981 by the following vote, to wit: AYES : Council Wers Packard, Casler, hear & Kulchizl NOES: None ABSENT: Councii Mer Lecfis ATTEST : (SEAL) c * Form 1658 Standurd (Apprd by Ged Solidtvr) PIPE LINE ILICEN3E BO-70015 --.l_l-l_- --_-_--__- ----_. -----. -_------------------ (hereinafter, whether one or more, called “licensee”), party of the second pait WIThXSSETH, That the parties hereto for tho considerations hereinafter expressed covenant and agree as follows: 1. Subject to the terms and conditio- hereinafter set forth, Licensor licenses Licensee to construct and maintain --_---_I- _- _-_--_-_..-__L---I-I_ one ( 1 ) pipe link-, __- thirty six- ----.-.~%&--.-,inches in diameter (hereinafter, whether one or more pipe Lines, w.lled the “PIPE LINE”), across or along the right of way of Licensor at or near the station of----F!!QL-------- _----------_ San Dig0 -- County, California, --the exact location of the PIPE LZSE being more particularly shown upon the print hereto attached, No.6-0&4~2~2 ----, dated- ____-_______ - March --- 30, 1981 & revised- April 21, 1961 -, marked “E-xhibit A” and made a part hereof. ____-__--_--- ------__ ~ --___- ----_ . 2. Licensee shall use -the PEE LINE solely for czzqing J’Gter --.I-_-----_--_ --- ------_-_--_I_ --..-I_-I- ----- ----- ---- ------___---_-I-_ and shall not use it to carry any other commodity or for aqv other purpose whatsoever. 3. Licensee shall pay Licensor as compensation for this license the sum of-- - ____-__________. ----- One Hundred - Fifty and No/100 Dollars ($150.00) I_------ 4. Licensee shall, at its own wst and subject to the supervision and control of Licensor’s chief engineer, locate, construct and maintain the PIPE LINE in such a inanner and of such material that it will not at any time be a source of danger to or interference with the present or future tracks, roadbed and property of ticensor, 01- the safe operation of its railroad. In cases where the Licensee is permitted under paragraph 2 hereof to use the PIPE LINE for oil, gzs, petroleum products, or other flammable or highly volatile substances und2r pressure, the PIPE LINE shall be constructed, installed and therst’ter maintained in conformity with the plans and specificc?tions shown on print hereto attached in such cases, marked Exhibit B 2nd made a part hereof. If at zny time Licensee shall, in the judgment of Licensor, fail to perform properly its obligatlom under this paragraph, Li- censor may, at its option, itself perform such work as it deems necessary for the safe operation of its railroad, and in such event Licensee agrees to pay, within fifteen (15) days after bill shall have been rendered therefor, the cost so incurred by Licensor, but failure on the pzrt of Licensor to per- form the obligations of Licensee shall not release Licensee from liability hereunder for loss or damage occasioned thereby. 5. Licensee shall reimburse Licensor for my expense incurred by Licensor €or fahe work to support Licensor’s tracks and for flagnan to protect its traffic during installation of the PIPE LINE and for any and ail 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 311 loss, damage or expense that Liccnsor may sustain, incur or become liable for, resulting in any mm- ner from the construction, maintenance, we, state or repair, or presence of the PIPE LINE, including any such loss, dnmnpe or expense arising out of (a) loss of or damage to property, (b) injury to or death of persons, (c) mechanics’ or other liens of any character, or (d) taxes or assessment9 of any Idnd. 7. If at any time Licensee shall fail or refuse to comply with or carry out any of the covenants herein contained Licensor may at its election forthwith revoke this license. . .. 8. THIS LICENSE is 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 de- * mand of Licensor, 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 v;ere prior to the placing of the PIPE LINE thereunder. In case Licensee shall fail to restore Licensor's premises as aforesaid within ten (10) days after the effective date of terminatioa, Licensor may proceed with such work at the expense of Licensee. No teiminatioil hereof shall release Licensee from any liability or obligation here- under, whether of indemnity or otheruise, 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 anyoze owning or obtaining title to the premises on which the PIPE LINE is located, or the sale or abacdonment by Licensor of said premises, Licensor shall not b3 liable to Licensee for any damage of any nature whatsoever or to refund any pzyrnent made by Licensee to Licensor hereunder, except the proportionate part of any recurring rentaf 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 Maif, postage prepaid, addressed to Licensee at- __ 1200 ______. __ __ Elm -. - - -________ Avenue __ - - L Carlsbad -_ - 2 - -- Califo - ~ -- - - ~ _-c?_La_--- 92008 -------- - Any notice to be given hereunder by Ilicensee 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,---- ______ .-&nera!_MitmWL-- _____at 5 2 oo-d-~-~~-~i~a-~t~-~ __________ I__ ------- ---- Los Angeles, CA 90040 11. In the event that two or more parties execute this instrummt as Licensee, all the covenants and agreements of Licensee in this license ahdl 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 benefit of the successors, legal representatives and assigns of the parties to the same estent and effect as the same are binding upon and inure to the benefit of the parties hereto, but no assignment hereof by Licensee, its successors, legal representatives or assigns, or any subsequent assignee, shall be bincl- ing upon Licensor nithout the m-itten consent of Licensor in each instance. -------__I_ _-------. I Attached hereto and made a part hereof is Rider "A", consisting of Paragraphs 13 through 20, identified by the signature of J. H. Schwartz. IN WITNESS WHEREOF, The parties have executed this agreement in duplicate. the day and __ (Licensor) year first above written. THE ATCHISON 2 -_----- TOPEKA AND SANTA FE @AC+!AY COMPANY .. e, . .,' . t .. $1 .a * .. RIDER "A" RIDER TO LICENSE AGREEMENT DATED APRIL 1, 1981, BETWEEN T€IE ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY .. re. , dd I and ' CITY OF CARLSBAD 13. In cases where Licensee is permitted under Section 2 hereof to use the PIPELINE for nopflammable substances, the PIPELINE shall be constructed, installed and thereafter maintained in conformity with plans and specifications set forth in the American Railway Engineering Association, Specification for Pipeline 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 said Licensor'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 PIPELINE shall for the purpose 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 contractor's or subcontractor's 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 PIPELINE and during any subsequent term or terms during which maintenance is performed on the PIPELINE. (a) Licensee shall, with respect to the operations which it performs upon, beneath or adjacent to Licensor's right of way and/or track, furinsh or arrange to have furnished (i) regular Contractors' Public Liability In'surance 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 ot 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 oE this subsection (a) or in separate policies maintained during such periods as such contractors and/or subcont,actors shall perform any work hereunder. The policy or policies insuring Licensee shall insure Licensee's contractual liability in favor of Licensor contained in Section 6 of this license, .. (b) Licensee shall, with respect to the operations it or any of its contractors or subcontractors perform upon, beneath or adjacent to Licensor's right of way and/or track, furnish or arrange to have furnished in Licensor's favor (i) policy or policies of insurance satisfactory to Licensor which shall protect Licensor against liability for injuries to or death of person or persons, INCLUDING LICENSOR'S EMPLOYES, occasioned by or resulting, in whole or in part, from the operations of Licensee or any of its subcontractors, on or contiguous to Licensor's property (except liability due solely to Licensor's negligence), with limits of not less than Five Hundred Thousand.Dol1ars ($500,000) for all ' damages arising out of bodily injuries to or death of one person and, subject to such limitation, One Million Dollars ($1,000,000) for all damages arising out of bodily injuries to or death of two or more persons in any one accident or occurrence; and (ii) policy or policies of insurance satisfactory to Licensor which will protect Licensor against liability for damgae to or loss or destruction of property, including property in Licensor's care, custody or control, occasioned by or resulting, in whol& or in part, from the operations of Licensee, its contractors or subcontractors (except liability due solely to Licensor's negligence) with limits of not less than One Million Dollars ($1,000,000) for each occurrence. -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 subsection (a) of Section 17 hereof, and to furnish, or arrange to have furnished, the original policy required by subsection (b) of.Section 17. Certificates reflecting the coverage required by subsection (a) shall unqualifiedly require 30 days' written notice to Licensor of cancellation or modi.fication 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 Licensor that insurance furnished pursuant to Section 17 hereof is satisfactory. 20. Licensee warrants that Licensee has succeeded all of the rights and interests of Paul Ecke in contract No. 55750 and agrees to indemnify and save harmless Licensor against all loss, damage or expense which Licensor may sustain, incur or become liable for, directly or indirectly, on account of any claims, demands, actions or causes of action whatsoever of Paul Ecke, or anyone claiming by, through or under him, whether as his, successor, heirs, creditors, assignees or otherwise, under contract No. 55750. Said contract is hereby terminated as of the date of this agreement. Identified by -. M91/50064F I' 1 EXHIBIT ATTACHED TO CONTRACT BETWEEN THE ATCHISUN, TOPEKA AND SANTA FE RAILWAY COMPANY AND 1 DESCRIPTION OF PIPE LINE UNDER TRACK I PIPE LINE LOCATED AS SHOWN ========== PIPE BASE OF RAIL CARRIES PRESSURE SIZE ZKND THICKNESS LENGTH TO TOP OF PlPE 3000-0 5' , CARRIER LJJQTP~ +~vw/ 36" 4.r p +" MW. --- \OO.AT' - wnt-4 r- -- __I -- _I CASING -