HomeMy WebLinkAboutREDdietrickb7RECEIVE D
OCT 19 2010
SLO CITY CLER K
From : Dietrick, Christin e
Sent : Tuesday, October 19, 2010 1 :52 PM
To : Cano, Elaina ; Judge, Christophe r
Subject : FW : Pipeline Crossing Agreement (PH-7 )
Please red file the attached agreement, which governs the City's
contractual obligations to UPRR as it pertains to Agenda Item PH-7 .
Thank you .
J . Christine Dietric k
City Attorne y
City of San Luis Obisp o
Direct Line : 805-781-714 3
Fax : 805-781-7109
k',/27C9/&M/1L
rf'COUNCIL CDD DI RRED FILE e'e CTFIN DI R
MEETING AGENDA ErACAG FIRE CHIE FEAT1ORNEYDIR
DATE /0/5/o ITEM #12ttLERK/ORi3 ET-POLICE CH F0DEPT HEADS (SEC ~I pIn%Di d
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PLX.DOC 940206
Form Approved, AVP-Law
Folder No . 1671-8 1
PIPELINE CROSSING AUDIT t3 -'3
1%GR,EEMENT
Mile Post 252.96, Coast Line
Location: San Luis Obispo, San Luis Obispo County, Californi a
THIS AGREEMENT is made and entered into as of the I day of ' ,
199 , by and between UNION PACIFIC RAILROAD COMPANY, a Delaware corporati• (hereinafter th e
Lice or) and CITY OF SAN LUIS OBISPO, a municipality to be addressed at 955 Morro Street, San Luis Obispo ,
California 93401 (hereinafter the Licensee).
IT IS MUTUALLY AGREED BY AND BETWEEN THE PARTIES HERETO AS FOLLOWS :
ARTICLE 1 -LICENSE FEE ,
Upon the execution of this Agreement, the Licensee shall pay to the Licensor a one-time license fee of FOU R
THOUSAND DOLLARS ($4,000 .00).
ARTICLE 2 -LICENSOR GRANTS RIGH T
in consideration of the license fee to be paid by Licensee and in further consideration of the covenants an d
agreements herein contained to be by the Licensee kept, observed and performed, the Licensor hereby grants to th e
Licensee the right to construct and thereafter, during the term hereof, to maintain and operat e
one 18 .7 inch sanitary sewer pipeline crossin g
(hereinafter the Pipeline) in the location shown and in conformity with the dimensions and specifications indicated o n
the attached print dated March 30,1998 and marked Exhibit A and,Exhibit A-l . Under no circumstances shall License e
modify the use of the pipeline for a purpose other than conveying sewage, and said pipeline shall not be used t o
convey any other substance, any fiber optics, or for any other use, whether such use is currently technologically possible ,
or whether such use may come into existence during the life of this Agreement .
ARTICLE 3 -CONSTRUCTION, MAINTENANCE AND9PERATIO N
The grant of right herein made to the Licensee is subject to each and 'all of the terms, provisions, conditions ,
limitations and covenants set forth herein and in Exhibit B, hereto attached .
ARTICLE 4 -JFWORK IS TO BE PERFORMED BY CONTRACTO R
If a contractor is to do any of the work performed on the l treline (including initial construction and subsequen t
relocation or substantial maintenance and repair work), then the Licensee shall require its contractor to execute th e
Licensor's form Contractor's Right of Entry Agreement.Licensee acknowledges receipt of a copy of Contractor's.Righ t
of Entry Agreement and understanding its term, provisions and requirements, and will inform its contractor of the nee d
to execute the Agreement . Under no circumstances will Licensee's contractor be allowed onto Licensor's premise s
without first executing the Cgptra ton's Right of Entry Agreement .
Articles of Agnxrnena January 12, 1999
Page 1 of 2
ARTICLE 5 - TERM
This Agreement shall take effect as of the date rust herein written and shall continue in full force and effec t
until terminated as herein provided .
ARTICLE 6 -INSURANCE;
a).The Licensee, at its expense, shall obtain the insurance described in Exhibit B-1, hereto attached . The License e
will also provide to the Licensor a Certificate of Insurance issued by its insurance carrier confirming the existence o f
such insurance and that the policy or policies contain the following endorsement :
Union Pacific Railroad Company is named as .an additional insured with respect to all liabilities arising ou t
of the existence, use of any work performed on or associated with the underground 18 .7 inch sanitary sewe r
pipeline crossing located on Railroad right of way at Mile Post 252 .96, Coast Line, San Luis Obispo, California .
b).If the Licensee named in this Agreement is a public entity subject to any applicable statutory tort laws, the limits
of insurance described in Exhibit B-1 shall be the limits the Licensee then has in effect or which is required b y
applicable current or subsequent law, whichever is greater, a portion of which may be self insured with the consent an d
approval of the Licensor..
c).All insurance correspondence shall be directed to :
Folder No: 1617.8 1
Union Pacific Railroad Company
1800 Farnam Stree t
Omaha, Nebraska 6810 2
ARTICLE 7 -SPECIAL PROVISION S
None .
IN WITNESS WHEREOF,the parties hereto have caused this Agreement to be executed in duplicate as of th e
date first herein written.
UNI0N PACIFIC RAILRt AD OMPAN Y
MANAGER - CONTRACT S
WITNESS :CITY OF SAN LUIS OBISP O
Articles of Agreemen t
Page 2 of 2
August25, 1998
A) IS PIPELINE CROSSING WITHIN DEDICATED STREET ?YES ;~_ND:81 IF YES . NAVE OF STREET,C) CARRIER PIPE :
CD&&IOQITY TO BE CONVEYED .Sas.1 irar•.lit A .r•)rf
OPERATING PRESSURE_.PS I
WALL THICKNESS o .E'k1 ;DIAMETER,19 .'1h_;MATERIAL
01 METHOD OF INSTALLING CARRIER PIPE UNDER TRACKIS):
DRY BORE AND JACK (WET BORE NOT PERMITTED);' ''TUNNEL:•; OTNER •Tie EEL,
E)DISTANCE FROM CENTER LINE OF TRACK TO NEAR FACE OF BORIN GJACKING PITS WHEN MEASURED AT RIGHT ANGLES TO TRACK 'tiP YIN.t
F)WILL CONSTRUCTION BE BY AN OUT5ID CONTRACTOR?_...SES;_NO;
GI APPLICANT HAS CONTACTED J N -''hia-l--OF U. P. COLAUNICATION DEPARTMENT AND HAS DETERMINED FIBER
OPTIC CABLE--JS .00ES ;DOES NOT ;EXIST IN VICINITY OF
WORK TO BE PERFORMED . TICKET NO.,t on-16s n
IN ALL OLSAAIhI . U.P. COWO1ICAT10NE OOA0TMOTT OUT
K CO ITACTm tN AP mgso P AMT soma TO KRUM'MOM=NIP
, LOCATION M P10*0 OPTIC •W r UWE I I-O00 .3IO.1IUU
!.
IwEE TNis 5tL[NLIM mown tN ALL CAE l SAT lACAIO NOT WOO SWIM.DIVA=15 A VUL ILMTT LIN(IS fta_lACl1
M'I M►
pt'+1RRDW~iMDtCA7INGNdtTH L :fir"
DIREEE .ON RELATIVE TO CROSSI'NG'•;•;r
ram
1) ALL I I20lLL Stomas 19 U l PMLti AT •1 T WED !1104 t of 15W.
11 A [QITEITU Vol CMID L$*PIPE 1PALE .PPLT ►fON mom-OP-V TO IIIWT-o-UkY.
11 tmmtst TO IMICATt LdCLT11M PIPaIMM AT *IfJIT-W I-f&T LIMO.IA i001TlCN r N M L taULLL st INITULL m
AT NINIIAM $00 R. IWT AALI Atom ►%PLUM OsOmA0ApIt Are Al LPTItTIPt M NI,IM dLYAtI ; Of OIR[CTIM.
.)OiNMMti V o0` fop M [l0 M AAK UIMI1.0 MIDQ II Of ANT C0L1[Rl .M Pow ANT ENITCNIIC MCI.
Al 71MM J 1NIITIK WLT U mum OU11N0 INSTALLATION IV U!LIAO stows Mt IN TK TICINITI M o10OLIM .
Al AuoA*.t ►lA0 M.IUT1 ismuoC •WM •U 1 If MIOCIDI a OW passives e o't s AO f1APUCTL tChrt IMO ILNti .OR cu..Ev T/.
T1 Wm INO O MI01 PIPE LIST K PLACID A MINI1AN Oft PUT ULM TIC DISTINa P1M OITIC CAPLG ANt CICATATIM AMMO 541-1 5
I PET Of M LTt511K f(Kf OPTIC CARL[WET OE MOD Ott.
•rl;,•I,l,,f.nT
. .t r ~ll rt~,~• ~~ •.,~ ! ».4 •.1r ti l
'r;FORM DR-O~Oh C1.1 0.A,REV . iP 1-9 3
AP.PLICA' ION FOR' 1WCMED
ANON FLAMMABL 49C)~,~,Pe-``PIPELINE CROSSING grcy
~,enNOTE: ALL AVAILABLE DIMENSIONS MUST B E
NO SCALE
_
.FILLED IN TO PROCESS THIS APPLICATION .
AND
FORC.rf.1 o6~aaalL,~S~Qt0 KMtNN 1
RR FILE NO.(L,'11- A . DATE
W A A N I H G
EXHIBIT "A ."1 .15 A 1UMA NA Aa. - M Ml. ~11R t.hll P>A I
E1oso .E PACIFIC RAILROAD CO .
Sauan.s 6ENtb . — CfEEE-C k-tEEE.MWImu
M. P .2.S2. , 4L E. S.$48B 4,D$_
INCASED SF+.:.~ SIl lA(CROSSING A T
CA . C,.HATS)1 0Mfr111NMAT MI It .1N p
DATE
-,.,ILJS
TO ,f $I).•-+tst,MtST IL& Taw'
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EXHIBITB.
Section I .IIMITATION AND SUBQFI,OlK$TE)N OF BIGHTS GRANTED .
a)The foregoing grant of right is subject and subordinate to the prior and continuing right and obligation of th e
Licensor to use and rna n its entire property bicludirp the right and power of the Licensor to construct maintain repair ,
renew, use, operate, change, modify or relocate rrdlrocid tracks, signal. communication. fiber optics, or other wirelines ,
pipelines arid other fadlities upon . along or across any or all parts of its property, all or any of which may be freely don eat any time or times by the Licensor without liability to the Licensee or to any other party for compensation or damages .
b)The foregoing grant is also subject to all outstanding superior rights (including those in favor of licensees an dlessees of the Licenses property, and others) and the right of the licensor to renew arid mend the same, and is made
without covenant of title or for quiet enjoyment ;
Section 2.CONSTRUCTION. MATNTENANCF .ANT)OPERATION.
a)The Pipeline shall be constructed, operated maintained, repaired, renewed, modified and/or reconstructed b y
the Licensee in strict conformity with Union Pacific Railroad Co. Common Standard Specification 1029 adopted Novembe r
1949, card all amendments thereof and supplements thereto, which by this reference is hereby made a part hereof, excep t
as maybe modified and approved by the Ucensor's Vice President-Engineering Services . In the event such Specification
conflicts in any respect with the requirements of any federal, state or municipal law or regulation, such requirements shal l
govern on all points of conflict, but in all other respects the Specification shall apply .
b)All work performed on property of the Licensor in connection with the construction, maintenaurce, repair, renewal ,
modification or reconstruction of the Pipeline shall be done to the satisfaction of the Licensor .
c)Prior to the commencement of any work in connection with the construction maintenance, repair, renewal ,
modification. relocation`reconstruction or removal of the Pipeline where it passes underneath the roadbed and truck o r
tracks of the Licensor, the Licensee shall submit to the Licensor plans setting out the method and manner of handling the
work Including the sliming and cribbing. if any. required to protect the Llcensor's operations, and shall not proceed wit h
the work tad such plans have been approved by the Vice President-Engineering Services of the Licensor and then the wor k
shall be done to the satisfaction of the Vice President-Engineering Services or his authorized representative . The Licensor
shall have the right, if it so elects, to provide such support as It may deem necessary for the safety of its track or tracks
during the time of construction maintenance, repair . renewal, modification, relocation, reconstruction or removal of th e
Pipeline, and, in the event the licensor provides such support the Licensee shall pay to the Licensor, within fifteen (15) days
after bills shall have been rendered therefor . all expense incurred by the Licensor in connection therewith, which expens e
shall include all assignable costs .
d)The Licensee shall keep and maintain the soil over the Pipeline thoroughly compacted and the grade even wit h
the adjacent surface of the ground .
Section 3.
NOTICE OF C01vt tENCEMENT OF WORD .
If an emergency should arise requiring immediate attention . the Licensee shall provide as much notice a s
practicable to Licensor before commencing easy work In all other situations, the Licensee shall notify the Licensor at leas t
ten (10) days (or such other time as the Licensor may allow) in advance of the commencement of any work upon propert y
of the licensor fn cannnectfan with the construction . maintenance, repair, renewal, modification reconstruction . relocation
or removal of the Pipeline . All such work shall be prosecuted diligently to completion .
Section 4 .I.LCGE NSEE TO BFAR ENTIRE E'XPfN$.
The Licensee shall bear the entire cost and expense incurred in connection with the construction, malntena me ,
repair rind renewal and any and all modification, revision, relocation removal or reconstruction of the Pipeline, includin g
any and all expense which may be incurred by the licensor in connection therewith for supervision . inspection . flagging,
or otherwise.
pliaaab Pane 1 9[4 fistula ”
tr1, X920113 .
Faso Approved. AVM-se
Section 5.i S,IiiZe lief io ),;.e.: i e i •;;4av el : •;JiyU ti n
a) The license herein granted is subject to the needs and requirements of the Licensor in the operation of its railroad
and in the improvement and use of its property,and the Licensee shall, at the sole expense of the License% reinforce thePipeline, or move all or any portion of the Pipeline to such now locution as the Licensor may designate, whenever, in th e
fatten ace of its needs and ruqu4renlents, the Licensor shall find such action necessary or desirable .
b1 All the terms, conditions and stipulations herein expressed with reference to the Pipeline on property of th e
Licensor in the location hsrefnbefor, described shall, so far as the Pipeline remains on the property, apply to the Pipeline
as modified, changed or relocated within the contemplation of this section .
Section 6.4O INTERFERENCE WM1 LIMSOJ S OPERATION .
The Pipeline and all parts thereof within and outside of the`'limits of the property of the licensor shall be
constructed and, at all times, maintained, repaired, renewed and operated in such manner as to cause no Interferon=
whatsoever with the constant, continuous nand uninterrupted use of the tracks,property and facilities of the Licenser, an dnothing snail be done or suffered to be done by the Licensee atany time that would in any manner impair the safety thereof .
Section 7 .pRO'PE 11ON OF FIBER OPTIC CABLE SYSTEMS .
a)Fiber optic cable systems may be buried on the Licensor's property . Protection of the fiber optic cable system s
is of extreme importance since any break could disrupt service to users resulting In business interruption and loss o f
revenue and profits. Licensee shall telephone the Licensor at 1-800-336-9193 (a 24-hour number) to determine if fiber opti c
cable is burled anywhere on the licensor's premises to be used by the Licensee . if it is, Licensee will telephone th e
telecommunications compcmyles) involved arrange for a cable locator, make arrangements for relocation or othe rprotection of the fiber optic cable, all at Licensee's expense, and will commence no work on the right of way until all suc h
protection or relocation has been accomplished . Licensee shall indemnify and hold the Licensor harmless from an d
against all costs, liability and expense whatsoever (ixluding, without limitation . attorneys' fees . court costs and expenses )arising out of or caused in any way by Licensee's failure to comply with the provisions of this paragraph .
b)In addition to other indemnity provisions In this Agreement the Licensee shall indemnify and hold the Licenso rharmless from and against all costs, liability and expense whatsoever (including, without limitation attorneys' fees, cour t
costs and expenses) caused by the negligence of the Licensee, Its contractor, agents and/or employees, resulting in (1 )
any damage to or destruction of any telecommunications system on Licensor', property, and/or (2) any injury to or deat h
of any person employed by or on behalf of any telecommunications company, and/or its contractor, agents and/o r
employees, on Licensor's property, except if such costs, liability or expenses are caused solely by the direct active -
negligence of the licensor . Licensee further agrees that it shall not have or seek recourse against Licensor for any claim
or cause of action for alleged loss of profits or revenue or loss of service or other consequential damage to a
telecommunication company using Licenser's property or a customer or user of services of the fiber optic cable on
Licensor's property.
Section 8 .CLAIMS AND I1E S FOR LABOR AND MATERIAL:TA1 ,
a)The Licensee shall fully pay for all materials joined or affixed to and labor performed upon property of the Licenso r
in =radian with the constructbrti m i iterrsme, repair, renewal, modification or reconstruction of the Pipeline, and shall
not permit or suffer any mechanic's or materialman's lien of any kind or nature to be enforced against the properly for any
work done or materials furnished thereon at the instance or request or on behalf of the Licensee . The Licensee shall
indemnify and hold harmless the Licensor against and from any and all liens, claims, demands, coats and expenses o f
whatsoever nature in any way connected with or growing out of such work done, labor performed, or materials furnished .
b)The Licensee shall promptly pay or discharge all taxes, charges and assessments levied upon . in respect to, o r
on account of the Pipeline, to prevent the same from becoming a charge or lien upon property of the Licensor, and so tha t
the taxes, charges and assessments levied upon or in respect to such property shall not be increased because of th e
bookie. construction or nsalrrierxn ce of the Pipeline or any improvement, appliance or fixture connected therewith placed
upon such property, or on account of the Licensee's interest therein . Where such tart, charge or assessment may not b e
separately rode or assessed to the licensee but shall be included in the assessment of the property of the licensor, the n
the Licensee shall pay to the Licensor an equitable proportion of such tares determined by the value of the Licensee's
property upon property of the Licensor as compared with the entire value of such property .
plx.erb Pap 2 ad4 Exhibit B
i
4
PLX910112
Funs Approved,AVPd aw
Section 9.=Min
In the event the Licensor authorizes the Licensee to take down any fence of the Licensor or in any manner mov e
or disturb any of the other property of the Licensor in connection with the construction, maintenance, repair, renewal ,
modification reconstruction, relocation or removal of the Pipeline, then in that event the licensee shall, as soon as possible
and at Licensee's sole expense. restore such fence and other property to the same condition as the same were in befor e
such fence was taken down or such other property was moved or disturbed, and the Licensee shall indemnify and hol d
harmless the Licensor, its officers, agents and employees,against and from any and all liability, loss, damages, claims ,
demands, costs amt expenses of-whatsoever name, Including court costs and attorneys'fees, which may result from injury
to or death of persons whomsoever, or damage to or loss or destruction of property whatsoever, when such injury, deat h
damage, loss or destruction grows out of or arises from the taking down of any fence or the moving or disturbance of any
other property of the Licensor .
Section 10 .INDEMNITY .
a)As used in this Section, 'Licensor' includes other railroad companies using the Licersor's property at or near th e
location of the Licensee's Installation and their officers, agents, and employees ; toss' includes loss. damage, claims ,
demands, actions, causes of action . penalties, costs. and expenses of whatsoever nature, including court costs an d
attorneys' fees, which may result from: a) injury to or death of persons whomsoever (including the licensors officers ,
agents. and employees, the Licensee's officers, agents, and employees, os well as any other person); and/or b) damage
to or loss or destruction of property whatsoever Wing Licensee's property, damage to the roadbed, tracks, equipmen t
or other property of the licensor, or property in its care or custody).
b)As a major inducement and in consideration of the license and permission herein granted, the Licensee agree s
to Indemnify and hold harmless the licensor from any Loss which is due to or arises from :
1.The prosecution of any work contemplated by this Agreement including the installation, construction ,
maintenance, repair, renewal, modification, reconstruction, relocation or removal of the Pipeline or an y
part thereof ; o r
2.The presence, operation or use of the Pipeline or contents escaping therefrom „
except to the extent that the Lass Is caused by the sole and direct negligence of the Licensor.
Section 11 .I4OVALOF PIPELINEMN TERMINATION OF AGREEMENT .
Prior to the termination of this Agreement howsoever, the licensee shall, at Licensee's sole expense ,
remove the Pipeline from those portions of the property not occupied by the roadbed and track or tracks of the licenso r
and shall restore, to the satisfaction of the Licensor, such portions of such property to as good a condition as they wer e
in at the time of the construction of the Pipeline . U the licensee fails to do the foregoing,the Licensor may do such work
of removal and restoration at the cost and expense of tltia Licensee. The Licensor may . at its option, upon such termination ,
at the entire cost and expense of the Licensee, remove the portions of the Pipeline located underneath its roadbed and
track or tracks and restore such roadbed to as good a condition as it was in at the time of the construction of the Pipeline ,
or it may permit the Licensee to do such work of removal and restoration to the satisfaction of the Licensor . In the event
of the removal by the Licensor of the property of the Licensee and of the restoration of the roadbed and property as herei n
provided, the Licensor shall in no manner be liable to the Licensee for any damage sustained by the Licensee for or o n
account thereof, and such removal and restoration shall In no manner prejudice or impair any right of action for damages ,
or otherwise, that the licensor may have against the Licensee .
Section 12.WAIVER OF BREACH .
The waiver by the Licensor of the breach of any condition, covenant or agreement herein contained to be kepi .
observed and performed by the Licensee shall in no way impair the right of the Licensor to avail itself of any remedy fo r
any subsequent breach thereof .
picot
Page 3 d4
Edible B
, .1
FL X9110112 .
.i Form Appevo4,AYF,-Lw
Section 13.TERMINATION.
a)If the licensee does not use the right herein granted or the Pipeline for one (1) year, or if the Licensee continuos
in default in the performance of any covenant or agreement herein contained for a period of thirty (30) days,after writte n
notice from the Licensor to the licensee specifying such default the Licensor may, at its option, forthwith immediatel y
terminate this Agreement by written notice .
b)In addition to the provisions of subparagraph a) above, this Agreement may be terminated by written notice give n
by either party hereto to the other on any date in such notice stated not less, however, than thirty (30) days subsequent to
the date upon which such notice shall be given .
c)Notice of default and notice of termination may be served personally upon the Licensee or by mailing to the las t
known address of the Licensee . Termination of this Agreement for any reason shall not affect any of the rights o r
obligations of the parties hereto which may have accrued, or liabilities, accrued or otherwise, which may have arisen prio r
thereto.
Section 14.AGREEMENT NOT TO BE ASSIGNED .
The Licensee shall not cosign this Agreement, in whole or in part, or any rights herein granted, without the writte n
consent of the Licensor, and it is agreed that any transfer or assignment or attempted transfer or assignment of thi s
Agreement or any of the rights herein granted, whether voluntary, by operation of law, or otherwise, without such consen t
in writing. shall be absolutely void and, at the option of the Licensor, shall terminate this Agreement ,
Section 15 .SUCCESSORS AND ASSIGNS .
Subject to the provisions of Section 14 hereof, this Agreement shall be binding upon and inure to the benefit of the
parties hereto, their heirs. executors, administrators, successors and assigns .
Pap 4 fit.Exhibit B