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HomeMy WebLinkAbout1981-05-19; City Council; Resolution 6538'I ti b 1 2 3 4 5 6 7 e 9 1c 11 1% 12 14 15 16 1: 1t 1: 2( 2: 2: 2; 2L 2: 2( 2: 2E RESOLUTION NO. 6538 A RESOLUTION OF THE CITY COUNCIL OF THE CITY QF CARLSBAD, CALIFORNIA, APPROVING A PIPE LINE LICENSE AGREEPIENT WITH THE AT&SF RAILWAY COMPANY AND AUTHQRIZING THE CITY MANAGER TO SIGN THE AGREEMENT ON BEHALF OF THE CITY. WHEREAS, the City Engineer of the City of Carlsbad has determined it is qecessary for the developer of CT 80-15(A), Carlsbad Commercial Center, to install a storm drain pipe line across the AT&SF Railway 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 AT&SF Railway Company requires that the City of Carlsbad mter into a Pipe Line License Agreement with them as a condition precedent to their allowing the construction of this storm drain pipe line across their right-of-way; and UHEREAS, plans for the construction of this storm drain pipe line have been approved by the City Engineer and are on file with the Engineering De par tmen t ; NOW, THEREFORE, be it resolved by the City Council of the City of Carlsbad as follows: PA XX xx 1. 2. 3. The above recitations are true and correct. 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 Agreement mentioned above on behalf of the City. PPRQVED AND ADOPTED by the City Council of the City of Carlsbad 1 2 3 4 5 6 7 8 9 10 11 12 1: 11 l! It 1: 1E 15 2c 21 22 24 25 26 27 28 at a regular meeting held the 19thday of vote, to wit: %Y , 1981 by the following AYES: Council Menhers Packard, Casler, hear & Kulchin NOES : None ABSENT: Council Mer Lewis ATTEST: - (SEAL) -2- e- 3. Licensee shall pay Licensor as compensation for this license the sum of-- - _________________ _. -------_ _---_-____ One Hundred Fifty and No/100 Dollars ($150.00) -_-_____--I---- - ____I__-_ ._-_ -----~----- ___----------------- I_ ---I - -__- - _---- 4. Licensee shall, at its own cust and subject to the supervision and control of Lieensor‘s chid engineer, locate, construct and maintain the PIPE LIP44 in such a manner 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 Licensor, or the safe operation of its railroad. In cases where the Licensee is permitted under paragraph 2 hereof to use the PIPE LJNE for oil, gas, petroleum productsr or other flammable or highly volatile substances under pressure, the PIPE LINE shall be constructed, installed and thereafter maintained in conformity with the plans and specifications shown on print hereto attached in such cases, marked Exhibit B and made a part hered. If at my tinx Licensee shall, in the judgmsnt of Licensor, fail to pedorm properly its obligatiorrs under this paragraph, Li- censor may, at its option, itself perform such work as it deems necessary €or the safe operation of its railroad, and in such event Licensee agrees to pay, within fiiteen (15) days dter bill shall have been rendered therefor, the cost so incurred by Licensor, but failure on the part of Licensor to per- form the obligations of Licensee shall not release Licensee from liabilie Hereunder for loss or damage occasioned thereby. 5, Licensee shall reimburse Licensor for any expense incurred by Licensor for false work to support Licensor’s tracks and for fla,man to protect its traffic during installatton of the PIPE LINE and for any and all other expense incurred by Licensor on account of the PIPE LINE. 6. Licensee shaU at all times indemnify and save harmless Licensor against and pay in €uU dl loss, damage or expense that Licensor may sustains incur or become li3bZe €or, resulting in any man- ner from the construction, maintenance, use? state or repair, or presence of the PIPE LINE, induding any such loss, damage or expense arising out of (a) loss of or damage tu property, (b) injury to or death of persons, (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 herein contained Licensor may at its election forthwith revoke this license. 0 0 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 were prior to the placing of the PIPE LINE thereunder. In case Licensee shall fail to restore Liwnsw’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 here- under, whether of indemnity or otherwise, resulting from any acts, oxisions 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 anyon,e owning or obtaining title to tke premises on which the PIPE LINE is located, or the sde 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 _. 1200 Elm Avenue e_-*-_...__l-__-.__?_forni Carlsbad Cal’ a 9” Any notice to be given hereundey by Licensee to Licensor shdf be deemed to be properly served if the same be deposited in the United States Mail, postage prepaid, addressed to Licensor‘s__----_--_------ ---I--- __-- ----- Los Angeles, CA 90040 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 covemints and provisions of this instrument shall be binding upon and inure to the benefit of the successops, legal representatives and assigns of the parties to the same extent 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 assigneee, shall be bincl- ing upon Licensor withwit the htten consent of Licensor in each instance. Attached hereto and made a part hereof is Rider “A”. consisting of Paragraphs 13 _-__-_-__r --_- ---. .----_----_- GeneraLth~~~-------.- __.___ .at 5 2 WE-%-SheiSaStreet ___-_--I_-_ through 20, identified by the signature of J. H. Schwartz. IN WITNESS WHEREOF, The parties have executed this agreement in duplicatp. the day and - (Licensar) year first above written. ____------- THE ATCHISON 3 -----I- TOPEKA AND SANTA FE wrLlrlAy COMPANY Approved as to Description: By ---------------------_____I--I- .. - .&- .. RIDER "A" 0 RIDER TO LICENSE AGREEMENT DATED APRIL 1, 1981, BETWEEN THE ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY and CITY OF CARLSBAD 13. In cases where Licensee is permitted under Section 2 hereof to use the PIPELINE for nonflammable 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 Licensee8s 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 PIPELIN3. (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 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 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 of this subsection (a) or in separate policies maintained during such periods as such contractors and/or subcont;actors shall perform any work hereunder. Licensee's contractual liability in favor of Licensor contained in Section 6 of this license. The policy or policies insuring Licensee shall insure 1. c a. 0- e .P . (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 Dollars ($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 whole 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 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 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. agreement. Said contract is hereby terminated as of the date of this Identified b M91/50064F ATTACHED TO CONTRACT BETWEEN THE ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY AND C\TCS OF- CPlRLSRPlD LOS ANGELES, CALIF. --e<\+ aa, \-a\ Lb5r P?WSD APRIL 2 4 /?B/ SCALE: 4 IN. TO 100 FT. TO N-T\QN%L C\Tq S-rORM m=Ga\w M.P. 231 + 2908.t .-E,'S. 22\5+ 26.3 DESCRIPTION OF PIPE LINE UNDER TRACK PIPE LINE LOCATED AS SHOWN ========== BASE OF RAIL CARRIES PRESSURE SIZE 6o KIND THICKNESS LENGTH TO TOP OF PIPE 3000-0 +" MIN. 100.a-t' CARRIER b~~i-4 LjR.QWW 36" ~.c.e - -- -- - CASfNG WON- - DW. DWG. NO. DIV. FILE NO.