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t-lle Nn. 3.14-8
CITY OF SAN BERhARDINO - REQUEST ~~R COUNCIL ACTION
From:
ROGER G. HARDGRAVE
Subject:
Authori:ation to Execute a
Pipeline License Agreement with
Atchison, Topeka and Santa Fe
Railway Company relating to
Mill Street Relie~
J
Dept:
Public Works/Engineering
Date:
6-28-88
Synopsis of Previous Council action:
09-23-86 --Allocation of $266,200 to Account No. 245-365-57724,
"Relief Sewer in Mill Street, east of Lytle Creek"
approved.
09-08-87 --Findings for Health and Safety for installation of
sewer made.
07-05-88 --Approval of Plans and Authorization to advertise for
bids to construct relief sewer in Mill Street.
Recommen,jed motion:
Adopt Resolution.
cc: Jim Robbins
Jim Richardson
Jim Penman
Andy Green
./ ~. )/'
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Signature
,-
Contact person: __
Gene R. Klatt
Phone:
5125
3
Supporting nata attached: _ S t a f!___.f< e p 0 r t, Res 0 1 uti 0 n
Ward:
FUNDING REQUIREMENTS:
Amount: $400
Sou rce:
Relief Sewer in Mill Street, E/O Lytle Creek
Finance:
245-365-57724
~ 1)r-----
Council Notes:
Anpnrl::l It&>m I\ln 3 9,
75-0262
CITY OF SAN BERPfARDINO - REQUEST FOR COUNCIL ACTION
STAFF REPORT
In order to construct the Mill Street relief sewer, east
of Lytle Creek, it is necessary to cross the Atchison, Topeka and
Santa Fe Railway Company property. Staff has contacted the rail-
road and discussed the project as well as the construction
methods.
It is necessary to enter into a license agreement with
the railroad for this pipeline crossing. The railroad has pre-
pared their standard license agreement and it i~ attached hereto.
There is a nominal fee of $400.00 for the license agreement.
Plans have been prepared to the specifications contained
in the agreement and the project is presently out to bid. It
will be necessary for the agreement to be executed prior to the
contractor entering the railroad property.
Funds for the project, including the agreement are con-
tained in Account No. 245-365-57724.
We, therefore, recommend the Mayor and Common Council
adopt the resolution authorizing the execution of the license
agreement.
6-28-88
75-0264
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6/28/88
1
RESOLUTION NO.
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 "A"
11 and incorporated herein by reference as fully as though set forth
12 at length.
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 authori zed.
18
I HEREBY CERTIFY that the foregoing resolution was duly
19 adopted by the Mayor and Common Council of the City of San
20 Be r n a r din 0 a t a
2]
day of
meeting thereof, held on the
, 1988, by the following vote,
22 to-wi t:
AYES:
Counci 1 Members
NAYS:
ABSENT:
City Clerk
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6/28/88
RES: EXECUTING PIPELINE LICENSE AGREEMENT WITH AT&SF RAILWAY
COMPANY 'LATING TO RELIEF SEWER IN 'ILL STREET
The foregoing resolution is hereby approved this
day of
, 1988.
Evlyn Wilcox, Mayor
City of San Bernardino
Approved as to form
and legal content:
- 2 -
,
EXHIBIT "A"
SAnta ~'e UnllWAl
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
llLicensorll), party of the first part, and CITY OF SAN BERNARDINO, a municipal
corporation (hereinafter, whether one or more, called IIlicensee")~ 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 pipeline, 18 inches in diameter (hereinafter,
whether one or more pipelines, called the IIPIPELINE"), across or along the right of
way of Licensor at or near the Station of San Bernardino, County of San Bernardino,
State of California, the exact location of the PIPELINE being more particularly
shown upon the print hereto attached, C.E. Drawing No. 3-08372, dated February 2,
1988 and last revised April 12, 1988, marked "Exhibit All and made a part hereof.
2. Licensee shall use the PIPELINE solely for carrying sewage 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 Four Hundred
and No/100 Dollars ($400.00).
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 wi 11 not at any time be a
source of danger to or interference wi th the present or future tracks, roadbed and
property of Licensor, or the safe operation of its railroad. In cases where the
Li censee is permitted under Section 2 hereof to use the PIPELINE for oil. gas.
petroleum oroducts. 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 BII 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 fail ure on the part of Licensor to perform the ob 1 i gati ons of
Licensee shall not release Licensee from liability hereunder for loss or damage
occasioned thereby.
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
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 pri or to the p 1 aci ng of the PIPELINE thereunder. In case Li censee 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 Li censee to Licensor hereunder, except
the proporti onate part of any recurri ng rental charge whi ch 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 parti es execute thi s Instrument as Licensee, a 11 the
covenants and agreements of Li censee in thi s Li cense shall be the joi nt and several
covenants and agreements of such parties.
Rev. 5/87 (1658/M87/C064a)
-2-
i
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 written noti ce 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 lor 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-
--
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 fa1sework, 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 Li cense, 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, CA 90040
By
Its
CITY OF SAN BERNARDINO
300 North "0" Street
San Bernardino, CA 92418
By
APPROVED AS TO FORM
AND LE~~.~~~~i/7. 4_
bl/~)
City Attorney
66315CH*
Rev. 5/87 (1658/M87/CD64a)
Its
(Licensee)
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