HomeMy WebLinkAboutAT & SF Railway Company; 1984-08-20; 173895^Contract No 173895
RETURN TO
Secretary, Tha A.T. & S.F. RY. CO. Topeka Santa Fe Original 11002184-25
PIPELINE LICENSE
THIS LICENSE, Made this 20th day of August 1984, between THE ATCHISON,
TOPEKA AND SANTA FE RAILWAY COMPANY, a Delaware corporation (hereinafter
called "Licensor"), party of the first part, and CITY OF CARLSBAD, a
municipality in the State of California (hereinafter, whether one or more,
called "Licensee"), party of the second part.
WITNESSETH, That the parties hereto for the considerations hereinafter expressed
covenant and agree as follows :
1. Subject to the terms and conditions hereinafter set forth, Licensor licenses
Licensee to construct and maintain one (1) pipeline, 24 inches in diameter
(hereinafter, whether one or more pipelines, called the "PIPELINE"), across or along
the right of way of Licensor at or near the Station of Ponto, County of San Diego,
State of California, the exact location of the PIPELINE being more particularly
shown upon the print hereto attached, No. 5-02308, dated July 24, 1984, marked
"Exhibit A" and made a part hereof.
2. Licensee shall use the PIPELINE solely for carrying storm water and shall not use it
to carry any other commodity or for any other purpose whatsoever.
3. Licensee shall pay Licensor as compensation for this License the sum of Two Hundred
Fifty and No/100 Dollars ($250.00).
4. Licensee shall, at its own cost and subject to the supervision and control of
Licensor's Assistant General Manager-Engineering, locate, construct and maintain the
PIPELINE 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 Section 2 hereof to use the PIPELINE for oil, gas,
petroleum products, or other flammable or highly volatile substances under pressure,
the PIPELINE 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 hereof. If at any time Licensee shall, in the
judgment of Licensor, fail to perform properly its obligations under this Section,
Licensor 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 part of Licensor to perform the obligations of
Licensee shall not, release Licensee from liability hereunder- for loss or" damage
occasioned thereby.
Licensee shall reimburse Licensor for any expense incurred by Licensor for falsework
to support Licensor's tracks and for flagman to protect its traffic during
installation of the PIPELINE and for any and all other expense incurred by Licensor
on account of the PIPELINE.
Rev. 9/82 (1658/CD64a/M91)-1-
6. Licensee shall at all times indemnify and save harmless Licensor against and pay in
full all loss, damage or expense that Licensor may sustain, incur or become liable
for, resulting in any manner from the construction, maintenance, use, state of
repair, or presence of the PIPELINE, including any such loss, damage 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 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.
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
ninety (90) 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 demand of Licensor, shall abandon the use of the PIPELINE 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 PIPELINE thereunder. In case Licensee shall
fail to restore Licensor'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 hereunder, whether of indemnity or otherwise, resulting from any acts,
omissions or events happening prior to the date the PIPELINE 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 anyone owning or obtaining title to the
premises on which the PIPELINE is located, or the sale 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. 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.
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 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 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 assignee, shall be binding upon
Licensor without the written consent of Licensor in each instance.
\-
Rev. 9/82 (1658/CD64a/M91) -2-
13. Notwithstanding any other provisions of this License, Licensee shall comply with all
statutes, 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. In its use of the premises,
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. In the
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 and 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.
Upon written notice from Licensor, Licensee agrees to assume the defense of any
lawsuit, 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 and/or 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.
14. 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.
Rev. 9/82 (1658/CD64a/M9l) -3- '\.
15. 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.
16. 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.
17. 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.
18. 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, furnish 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 out 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 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 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 of 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
Rev. 9/82 (1658/CD64a/M91) -4- ^
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 damage 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.
19. 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 18 hereof, and to
furnish, or arrange to have furnished, the original policy required by
Subsection (b) of Section 18. Certificates reflecting the coverage required by
Subsection (a) shall unqualifiedly require thirty (30) days' written notice to
Licensor of cancellation or modification of the insurance referred to in such
certificates.
20. Licensee shall not be permitted to exercise the license and permission granted
hereunder until notified by Licensor that insurance furnished pursuant to Section 18
hereof is satisfactory.
IN WITNESS WHEREOF, the parties have executed this License, in duplicate, the day and
/ear first above written.
THE ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY
One Santa Fe Plaza
5200 E. Sheila Street
Los Angeles, CA 90040
Manager of ContractsIt
CITY OF CARLSBAD
1200 Elm Avenue
Carlsbad, CA 92008
Its
(Licensee)
30947CH*
Rev. 9/82 (l658/CD64a/M91)_ R—»
SECY'S NO.
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