Loading...
HomeMy WebLinkAbout1989-410 '4 ~. J T ~ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 RESOLUTION NO. 89-410 RESOLUTION OF THE CITY OF SAN BERNARDINO AUTHORIZING THE EXECUTION OF A PIPE LINE LICENSE WITH THE ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY, RELATING TO CONSTRUCTION AND MAINTENANCE OF A 12-INCH INTERCEPTING SEWER ACROSS RAILROAD RIGHT-OF-WAY ALONG CABLE CREEK CHANNEL, AT CAJON BOULEVARD. BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: SECTION 1. The Mayor of the Ci ty of San Bernardino is hereby authorized and directed to execute on behalf of said City a Pipe Line License with The Atchison, Topeka and Santa Fe Railway relating to construction and maintenance of a 12-inch intercepting sewer across railroad right-af-way along Cable Creek Channel, at Cajon Boulevard, a copy of which is attached hereto, marked Exhibi t "A" and incorporated herein by reference as fully as though set forth at length. SECTION 2. The authorization granted hereunder shall not take effect until fully signed and executed by all parties. The 16 17 18 19 20 21 22 City shall not be obligated hereunder unless and until the license agreement is fully executed and no oral agreement relating thereto shall be implied or authorized. SECTION 3. The authorization to execute the above- referenced agreement is rescinded if the parties to the agreement fail to execute it within sixty (60) days of the passage of this resolution. 23 24 I I I I 25 IIII 26 I I I I 27 I I I I 9 I 2 2 I 8 9 28 I I I I . ~ " 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 9/22/89 28 RESO: , EXE9UTING PIPE LINE LICENSE WITH ATCHISON, TQPEKA AND SANTA FE RAILWAY COMPANY RELATING TO A 12-INCH INTERCEPTING SEWER ALONG CABLE CREEK CHANNEL AT CAJON BOULEVARD. 1 2 3 I HEREBY CERTIFY that the foregoing resolution was duly adopted by the Mayor and Cornmon Council of the Ci ty of San Bernardino at meeting thereof, a held reqular on the -1:..6thday of October , 1989, by the following vote, to-wit: AYES: Council Members Estrada, Reilly, Flores, Maudsley Minor, Pope-Ludlam, Miller NAYS: None ABSENT: None ?~ ~~~I <'~/ /' City Clerk The foregoing resolution is hereby approved thi~-) / / / / ./ / / / I~day of October , 1989. / / ///~?2//;t/.(/' / / /;:?//';// ~/lv/ / ~</<,' /.... I c. '. ./v I / .". 'R ../ Holcomb, iFlayor City' of San Bernardino pproved as to form nd legal content: ames F. Penman ity Attorney y!f~~?' ,1 f i /fc~ ,-, - 2 - ". . ( 6JDl162 PIPE LINE LICENSE THIS LICENSE, Made this 15th day of September , 19~, between THE ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY, a Delaware corporation (hereinafter called "Licensor"), party of the first part, and _ CITY OF SAN BERNARDINO. a municipal corporation of the State of California (herei na fter, whether one or more, call ed II L i censee"), party of the second part. WITNESSETH, That the parties hereto for the consideration 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 ) pip e 1 i n e _ , P.F. B. 8 . 75 I 2. 9 2 inches in di ameter (herei na fter, whether one or more pi pe 1 i nes, call ed the "PIPE LINE"), across or along the right of way of Licensor at or near the station of Verdemont. San Bernardino County. California , the exact location of the PIPE LINE being more particularly shown by bold line upon the print hereto attached, No. 1-10746 , dated August 22. 1989 , marked "Exhibit A" and made a part hereof. 2. Licensee shall use the PIPE LINE solely for carrying sewage and shall not use it to carry any other commodi ty or for any other purpose whatsoever. (a) Licensee covenants that it will not handle or transport through the pipe line on Licensor's property "hazardous waste" or "hazardous substances", as "hazardous waste" and "hazardous substances II may now or in the future be defined by any federal, state, or local governmental agency or body. In the event the Pipe Line is now or in the future used in handling, or transporting of "hazardous waste" or "hazardous substances", Licensee agrees fully to comply with all applicable federal, state, and local laws, rules, regulations, orders, decisions and ordinances (hereinafter referred to as "Standards") concerni ng "hazardous waste" and "hazardous substances". Licensee further agrees peri odi ca 11 y to furni sh Licensor wi th proof, satisfactory to Licensor, that Licensee is in such compliance. Should Licensee not comply fully with the above-stated obligations of this Section, notwi thstandi ng anythi ng contained in any other provi s i on hereof, Licensor may, at its option, terminate this License by serving five (5) days' notice of termination upon Licensee; but any waiver by Licensor of any breach of Licensee's obligations shall not constitute a waiver of the right to terminate thi s License for any subsequent breach whi ch may occur, or to enforce any other provision of this License. Upon termination, Licensee shall remove the pipe line and restore Licensor's property as herein elsewhere provided. 3-4-85-1658/210V ~. . t (b) Notwithstanding anything contained in the liability section hereof, incase of a breach of the ob 1 i ga ti ons contained in thi s Secti on, or any of them, regard1 ess of the neg1 i gence or all eged neg1 i gence of Licensor, Licensee agrees to assume liability for and to save and hold harmless Licensor from and against all injuries to any person and damage to property, including wi thout 1 i mi tati on, emp 1 oyes and property of Licensor and Licensee and all re 1 a ted expenses, i nc 1 udi ng wi thout 1 i mi ta ti on attorneys' fees, i nves ti ga tors' fees and litigation expenses, resulting in whole or in part from Licensee's failure to comply with any Standard issued by any governmental authority concerni ng "hazardous substances II and/or "hazardous waste". Licensee, at its cost, shall assume the defense of all claims, suits or actions brought for damages, and fi nes or pena 1 ti es hereunder, regard1 ess of whether they are asserted against Licensor or Licensee. Licensee also agrees to reimburse Licensor for all costs of any kind incurred as a result of the Licensee's failure to comply with this Section, including, but not limited to, fines, pena 1 ti es, c1 ean-up and di sposa 1 costs, and 1 ega 1 costs incurred as a resu1 t of Licensee's hand1 i ng, transporti ng, or di sposi ng of "hazardous waste" or "hazardous substances" on the property of Licensor. (c) It is understood and agreed that a Licensee who does not now, or in the future, generate, handle, transport, treat, store or dispose of on Licensor's property "hazardous waste" or "hazardous substances II wi thi n the meani ng of the Secti on, is not subj ect to the provi s ions of Secti on 2 (b) hereof. 3. Licensee shall pay Licensor as compensation for this license the sum of Four hundred and No/100 dollars ($400.00) 4. Licensee shall, at its own cost and subject to the supervlslon and control of Licensor's chief engineer, locate, construct and maintain the PIPE LINE in such a manner and of such material that it will not at any time be a source of danger to or interference wi th the present or future tracks, roadbed and property of L i cen sor, or the safe opera ti on of its rail road. In cases where the Licensee is permitted under paragraph 2 hereof to use the PIPE LINE for oi 1. gas. petroleum oroducts. or other f1 ammab 1 e or hi gh 1 Y vola ti 1 e 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 hereof. If at any time Licensee shall, in the judgment of Licensor, fail to perform properly its obligations under this paragraph, Licensor may, at its option, itself perform such work as it deems necessary for the safe operation of its ra i 1 road, and in such event Licensee agrees to pay, wi thi n fi fteen (15) days after bill shall have been rendered therefor, the cost so incurred by Licensor, but fail ure on the part of Licensor to perform the ob 1 i ga ti ons of Licensee shall not release Licensee from liability hereunder for loss or damage occasioned thereby. 5. Licensee shall rei mburse Licensor for any expense incurred by Licensor for false work to support Licensor's tracks and for flagman to protect its traffic during installation of the PIPE LINE and for any and all other expense incurred by Licensor on account of the PIPE LINE. - 2 - 3-4-85/1 658/210V .f 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 PIPE LINE, 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 1 i ens of any character, or (d) taxes or assessments of any ki nd. It is the intention of the parties that Licensor.s right to indemnity hereunder shall be valid and enforceable against Licensee regardless of negligence (whether active, passive, derivative, joint, concurring or comparative) on the part of Licensor, its officers, agents and employees. 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. Thi s 1 i cense is gi ven by Licensor and accepted by Licensee upon the express condi tion that the same may be termi nated at any time by ei ther 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 demand of Licensor, shall abandon the use of the PIPE LINE and remove the same and res tore the ri ght of way and tracks of Licensor to the same condi ti on in whi ch they were pri or to the p 1 aci ng 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 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 PIPE LINE is removed and the right of way and track of Licensor restored as above provided. 9. In the case of the evi cti on of Licensee by anyone owni ng or obtaining title to the premises on which the PIPE LINE is located, or the sale or abandonment by Licensor of said premi ses, Licensor sha 11 not be 1 i ab 1 e 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 noti ce hereunder to be gi ven 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 300 North IIDII Street. San Bernardino. California 92418-0001 . Any noti ce to be gi ven hereunder by Licensee to Licensor sha 11 be deemed to be properly served if the same be deposited in the United States Mail, postage prepaid, addressed to Licensor.s Vice President - Operations at P. O. Box 1738, 920 S. E. Quincy Street, Topeka, Kansas 66601. 11. In the event that two or more parties execute this instrument as L; censee, a 11 the covenants and agreements of Licensee in thi s 1 i cense shall be the joint and several covenants and agreements of such parties. - 3 - 1658/210V , .f 12 . All the covenants and provl s 1 ons of thi sins trument shall be binding upon and inure to the benefit of the successors, legal representatives and ass i gns of the parti es 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. 13. Notwithstanding any other provisions of this license, Licensee shall comply with all statutes, ordinances, rules, regulations, orders and deci s ions (herei na fter referred to as "Standards ") , issued by any federal, s ta te or 1 oca 1 governmenta 1 body or agency es tab 1 i shed thereby (herei na fter 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 fail s to be in full comp 1 i ance wi th Standards set by any Authori ty, 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 non-comp 1 i ance or to gi ve wri tten noti ce to the Licensor of its intent to contest the allegation of non-compliance 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, consu 1 ti ng, engi neeri ng, clean-up and di sposa 1 cos ts , and 1 ega 1 cos ts) 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, whether such claim arises in whole or in part from the negl i gence or all eged negl i gence of the Licensor or otherwi se. Licensee, at its cost, shall assume the defense of all such claims regardless of whether they are asserted against Licensee or Licensor. 14. Upon written notice from Licensor, Licensee agrees to assume the defense of any 1 awsui t, admi ni strati ve acti on or other proceedi ng brought against Licensor by any public body, individual, partnership, corporation, or other 1 ega 1 enti ty, re 1 ati ng to any matter covered by thi s License for whi ch 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 I 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, negl i gence, breach of statute or ordi nance, or upon any theory created by statute or ordinance, state or federal. - 4 - 3-4-85-1658/210V t ' #f IN WITNESS WHEREOF. the parties have executed this agreement in duplicate the day and year first above written. THE ATCHISON. TOPEKA AND SANTA FE RAILWAY COMPANY By 771o/~~~ Its Manager of Contracts / :. //0/;/// 7 ATTEST: ~41(1V~$ ~ City Clerk Approved as to form and legal content: James F. Penman City Attorney (k ~ By \ ~ J.I<%~ () - 5 - 3-4-85-1 658/210V/2574d/2228/8 C.E. FILE NO. ~4-040r02'225 '. ,'" EXHIBIT "A" ATTACHED TO CONTRACT BETWEEN THE ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY AND CITY OF SAN 8ERNARDINO TOPEKA, KANSAS SCALE: 1 IN. TO 100 FT. CAL1FORNIA DIV. CA-10N SUBDIV. DATE: AuguS+2211QaQ _H._g._~~bl:L_____ CHIE F ENGINEER DESCRIPTION APPROVED u. w a: Q. <I{ ::E S: (r 2 E.5. 3Q2Q+01.4 MP 15+0~54.8 CA-1 0 t~ BL VO. R/w Une - - ''\ t No. Mo"n Track - -',,- 8 1 10 50 <t. So. Main Trock- .-~ 100" .. To San Bernardino ~. R/W Line ari~ ~ ,/ en ~ To '&ar5+0W DESCRIPTION OF PIPELINE " PPEUNE SHOWN BOLD CARRIER CASING ~ II PFE SIZE: P.F.B. I ~ ,~ ~ 24" CONTENT~ ~e~aQe PPE MATERIAL: PYC sfee \ SPECFICA TION I GRADE:~lMG;lCl. 5ORYo 6Tode ~ WAlL THICICNESS: 0.46 O.~'5 O.5CX) COATWG: Yes CARRIER PPE LENGTH ON R/W: '52. ~ WORKN; PRESSURE: 61ov', ty BURY: BASElRAL TO TOP OF CASING BURY: NATURAl. GROUND BURY: ROADWAY DITCHES CA THOOIC PROTECTION CASH; PPE Cb.4 G,'-q" 4 '-<0 'I 4 · -<c ,1 . VENTS: NUMBER---=-- SIZE - HEIGHT OF VENT ABOVE GROUND NOTE: CASING TO BE JACKED OR DRY BORED ONLY NeQr Verdemot\t,Son Bernar-dino County, California C.E. DRAWING NO.1 - \014<0 DIV. DWG. NO. DIV. FILE NO. G.M. FILE NO. -l~E.