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HomeMy WebLinkAbout1988-270 .j I RESOLUTION NO. 88-270 2 RESOLUTION OF THE CITY OF SAN BERNARDINO AUTHORIZING THE EXECUTION OF A PIPELINE LICENSE AGREEMENT WITH ATCHISON, TOPEKA 3 AND SANTA FE RAILWAY COMPANY RELATING TO THE RELIEF SEWER IN MILL STREET EAST OF LYTLE CREEK. 4 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE 5 CITY OF SAN BERNARDINO AS FOLLOWS: 6 SECTION 1. The Mayor of the City of San Bernardino is 7 hereby authorized and directed to execute, on behalf of said 8 City, an agreement with Atchison, Topeka and Santa Fe Railway 9 Company relating to the Mill Street Relief Sewer, east of Lytle 10 Creek, which agreement is attached hereto, marked Exhibit II A" 11 and incorporated herein by reference as fully as though set forth 12 at 1 ength. 13 SECTION 2. The agreement shall not take effect until 14 fully signed and executed by both parties. The City shall not 15 be obligated hereunder unless and until the agreement is fully 16 executed and no oral agreement relating thereto shall be implied 17 or authorized. 18 I HEREBY CERTIFY that the foregoing resolution was duly 19 adopted by the Mayor and Common Council of the City of San 20 Bernardino at a 21 18th day of 22 to-wit: 23 AYES: 24 regular meeting thereof, held on the July , 1988, by the following vote, Counci 1 Members Estrada, Reilly, Flores, Maudsley, Minor, Miller 25 26 27 28 6/28/88 NAYS: ABSENT: None Council Member Pope-Ludlam ~~ / C 1 ty C e r k . # , 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6/28/88 Res: ~XECUTING PIPELINE LICENSE AGREEMENT WITH AT&SF RAILWAY COMPANY RELATING TO RELIEF SEWER IN MILL STREET day of The foregoing resolution is hereby approved this 20th July , 1988. By: ~.?( ~ Mayor Pro Tempore , Evlyn Wilcox, Mayor City of San Bernardino Approved as to form and legal content: \. /) ~iv~~ ,11/,1 y At tor n e y l/' - 2 - t' . . 11009305-25 PIPELINE LICENSE THIS LICENSE, made thi s 22nd day of June 1988, 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 (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 +" Licensee whether c way of L i Sta te of shown upc 1988 and .......,.1 ___.J.!..L..!--- ../ 'i " ,!c2 .' 'ei nafter set forth, Licensor 1 i censes ne, 18 inches in diameter (hereinafter, PIPELINE"), across or along the right of In Bernardino, County of San Bernardino, f the PIPELINE bei ng more parti cul arly Drawi ng No. 3-08372, dated F ebrua ry 2, "Exhibit A" and made a part hereof. +ho / a~ +-/\yom... \1 I.' l/ -//.. i ,..... . ' ".1 ...; . ? q., /,:/ 1/,'--' 2. Licensee carry any ,," ilf" , · . .J,""" r ~ /" l..,:' ~.. . ( I ,,:>- /' /~ / carrying sewage and shall not use it to rpose whatsoever. ~ I '/ " I ~ J /. ;' e";... [.//,/);1; 3. . ( ( ;/ Licensee--" /. 1/ and Noll 0< ; ;,', ,~I " fll(' ~ Licensee lct to the supervision and control of Licensor'. "'/ ing, locate, construct and maintain the PIPELINE rial that it will not at any time be a source of I present or future tracks, roadbed and property ______., _. ....... ..U.I\;; vt-/CIUI.IUII of its railroad. In cases where the Licensee is permi tted under Secti on 2 hereof to use the PIPELINE for oi 1. gas. petroleum products. or other flammable or highly volatile substances under pressure, the PIPELINE shall be constructed, installed and thereafter maintained in conformity wi th the plans and speci fi cati ons shown on pri nt hereto attached in such cases, marked "Exhibit B" and made a part hereof. If at any time Licensee shall, in the judgment of L i cen so'r, fail to perform properl y its ob 1 i ga ti ons under thi s Secti on, 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 L i cen sor , but fail ure on the part of L i cen sor to perform the ob 1 i ga ti ons of Licensee shall not release Licensee from liability hereunder for loss or damage occasioned thereby. or this License the sum of Four Hundred 4. Rev. 5/87 (1658/M87/CD64a) -1- ,. . . 5. Licensee shall reimburse Licensor for any expense incurred by Licensor for fa1sework 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. 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 ni nety (90) days I noti ce in wri ti ng to be served upon the other party, stati ng therein the date that such termination shall take place, and that upon the termi nat; on of thi s L; cense ; n thi s or any other manner here; n provi ded, L; censee, 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 fa i 1 to res tore Licensor's premi ses as a foresa i d wi thi n 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, omi s s ions or events happeni ng pri or to the date the PI PELINE 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 noti ces to be gi ven hereunder shall be gi ven in wri ti ng, by depos i ti ng 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. Rev. 5/87 (1658/M87/CD64a) -2- f . . . . , 12. All the covenants and provlslons 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. 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 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 wri tten noti ce from Licensor, Licensee agrees to as sume 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 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. Rev. 5/87 (1658/M87/CD64a) -3- . . . . . . r 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. 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. IN WITNESS WHEREOF, the parti es have executed thi s License, in dup 1 i cate, the day and year first above written. THE ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY One Santa Fe Plaza 5200 E. Sheila Street Los AngeleS'~o By ~ Its Assistant Managp-r of Contr8Gts CITY OF SAN BERNARDINO 300 North "0" Street San Be;pardino"Z'. 92~18 By{ ~,4 //h.,~~ , THOMAS MINOR Its Mayor Pro Tempore (Licensee) 66315CH* Rev. 5/87 (1658/M87/CD64a) -4- 8150415 c :c c ~ p z p ~>> z~ ~~ ~ ~m ~~ OjO g~ ;zP ~ .. ~ -- ." o ~ ;; ,.....,. OJ~ m · -~ U. 6':_ · ~~ ~ < 0 + " - ~ ~~ -;pa.u. 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