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April 22, 2019 Agenda E RIC S WENSON,M AYOR V ACANT,C OUNCILOR W ARD 1 C ITY OF W OODBURN L ISA E LLSWORTH,C OUNCILOR W ARD II R OBERT C ARNEY,C OUNCILOR W ARD III C ITY C OUNCIL A GENDA S HARON S CHAUB,C OUNCILOR W ARD IV M ARY B ETH C ORNWELL,C OUNCILOR W ARD V A PRIL 22,2019–7:00 P.M. E RIC M ORRIS,C OUNCILOR W ARD VI W OODBURN P OLICE D EPARTMENT C OMMUNITY R OOM -1060M T.H OOD A VE 1.CALL TO ORDER AND FLAG SALUTE 2.ROLL CALL 3.ANNOUNCEMENTS AND APPOINTMENTS Announcements: A.The City's Budget Meeting will be held at 9:00 a.m. on Saturday, April27, 2019at Woodburn Police Department Community Room. Appointments: None. 4.COMMUNITY/GOVERNMENT ORGANIZATIONS None. 5.PROCLAMATIONS/PRESENTATIONS Proclamations: None. Presentations: A.WoodburnLibraryBoard 6.COMMUNICATIONS None. 7.BUSINESS FROM THE PUBLIC–This allows the public to introduce items for Council consideration not already scheduled on the agenda.Comment time will be limited to 3 minutes. This facility is ADA accessible. If you need special accommodation, please contact the City Recorder at 503-980-6318at least 24 hours prior to this meeting. **Habrá intérpretes disponibles para aquéllas personas que no hablan Inglés, previo acuerdo. Comuníquese al (503) 980-2485.** April 22, 2019Council Agenda Page i 8.CONSENT AGENDA–Items listed on the consent agenda are considered routine and may be adopted by one motion. Any item may be removed for discussionat the request of a Council member. A.Woodburn City Council minutes of April 8, 20191 Recommended Action: Approve the minutes. B.Woodburn City Council Executive Session minutes of April 8, 20195 Recommended Action: Approve the minutes. D.Liquor License Application for El Potrero Night Club, Corp.6 Recommended Action:The Woodburn City Council recommends that the OLCC approve the Liquor License Applicationfor El Potrero Night Club, Corp. E.Woodburn Planning Commission minutes of January 24, 20198 Recommended Action:Accept the minutes. F.Woodburn Planning Commission minutes of February 14, 201913 Recommended Action:Accept the minutes. G.Woodburn Planning Commission minutes of March 14, 201916 Recommended Action:Accept the minutes. 9.TABLED BUSINESS None. 10.PUBLIC HEARINGS None. 11.GENERAL BUSINESS –Members of the public wishing to comment on items of general business must complete and submit a speaker’s card to the City Recorder prior to commencing this portion of the Council’s agenda. Comment time will be limited to 3 minutes. A.Hardcastle Avenue Realignment at Railroad Project –Agreement20 between Union Pacific Railroad and the City of Woodburn(Goal Numbers 2,5) Recommended Action:Authorize the City Administrator to execute a Public Highway At-Grade Crossing Agreement for the Hardcastle Avenue Realignment at Railroad project. April 22, 2019Council Agenda Page ii B.Intergovernmental Agreement –Hardcastle Avenue Realignment 62 and Railroad Grade Crossing Alteration, Misc. Contracts and Agreements No.33267(Goal Number 4) Recommended Action:Authorize the City Administrator to execute anIntergovernmental Agreement(IGA) between the State of Oregon and the City of Woodburn pertaining to a $200,000 contribution from Oregon Department of Transportation Rail Division for the Hardcastle Avenue Realignment at Railroad project. 12.PLANNING COMMISSION OR ADMINISTRATIVE LAND USE ACTIONS– These are Planning Commission or Administrative Land Use actions that maybe called up by the City Council. A.Call-Up Briefing: Planning Commission Denial of a Variance 69 Application for Do It Best Corp. at 333 S. Woodland Ave (VAR 2018-04) Recommended Action:Staff recommends no action and briefs the Council on this item pursuant to Woodburn Development Ordinance (WDO) Section 4.02.02. The Council may call up this item for review if desired and, by majority vote, initiate a review of this decision. B.Call-Up Briefing: Planning Commission Approval of a Conditional 70 Use Application for Tienda Mexicana Monte Alban at 425 & 445 N. First St (CU 2019-01) Recommended Action:Staff recommends no action and briefs the Council on this item pursuant to Woodburn Development Ordinance (WDO) Section 4.02.02. The Council may call up this item for review if desired and, by majority vote, initiate a review of this decision. 13.CITY ADMINISTRATOR’S REPORT 14.MAYOR AND COUNCIL REPORTS 15.EXECUTIVE SESSION None. 16.ADJOURNMENT COUNCIL GOALS 2019-2021 Thematic Goals 1.Create an inclusive environment where residents participate and are engaged in the community (that is vibrant, safe and active). 2.Promote an environment that encourages sustainable economic health maximizing our geographic, workforce, cultural and community assets. April 22, 2019Council Agenda Page iii Strategic Goals 3.Create an inclusive environment where Woodburn residents want to participate and are engaged in the community. 4.Develop innovative funding sources to help support the completion of capital improvement projects. 5.Grow and support strategic partnerships for economic health. 6.Explore the development of a non-profit consolidation facility. 7.Improve Communication and Coordination with School District on matters of mutual interest. 8.Completion of the First Street remodel. 9.Completion of Phase 1 & 2 of the Community Center Project including the formation of an ad hoc steering committee to review and recommend design. 10.Creation of the Dick Jennings Community Leadership Academy. 11.Develop a strategy to limit PERS liability. 12.Establishment of a Woodburn 20 year community-visioning plan. April 22, 2019Council Agenda Page iv COUNCIL MEETING MINUTES APRIL 8, 2019 DATEWOODBURNPUBLIC LIBRARY,CONFERENCEROOM, CITY OF W OODBURN, COUNTY OF MARION, STATE OF OREGON, APRIL 8, 2019 CONVENEDThe meeting convenedat7:10 p.m. withpresiding. ROLL CALL Mayor Swenson Absent Councilor CarneyPresent Councilor Cornwell Present Councilor SchaubPresent Councilor MorrisPresent Councilor EllsworthPresent Staff Present:City Administrator Derickson, City Attorney Shields, Assistant City Administrator Row,Public Works Director Liljequist, Economic Development Director Johnk, Community Development Director Kerr, Deputy Police Chief Pilcher,Assistant City Attorney Granum, Communications Coordinator Moore, Community Relations Manager Gutierrez-Gomez,City Recorder Pierson ANNOUNCEMENTS Ward 1 City Council position is vacant. Applications to fill the vacancy will be accepted beginning Friday, April 5 through Friday, May 3. PROCLAMATIONS Council President Carney read the proclamation declaring April 2019, as Child Abuse Prevention Month. Deputy Chief Pilcher thanked Liberty House for their services to families. Alison Kelley andKelley Parosa,of Liberty House provided information on the services that Liberty House provides and thanked the City Council for the proclamation and their support. Teri Alexander,with Safe Families for Children, spoke about Safe Families for Children and their work to provide a network of support to families in crisis. WOODBURN RECREATION AND PARK BOARD David Piper, Chair of the Woodburn Recreation and Park Committee, provided the City Council with the Committee’s 2019 project ranking. The Committeeranked the projects as follows: (1) Community Center, (2) Legion Park Phase II, (3) Replace Burlingham Park Picnic Shelter, (4) Museum/Bungalow Rehabilitation, (5) Senior Estates Park Improvements, (6) Continue Greenway Projects, (7) Dog Park Improvements, (8) Nelson Park/Soccer Field Improvements, (9) Add/Improve park comfort and convenience features, (10) Burlingham Park Master Plan, (11) Lights at Centennial Park Baseball Fields, and (12) Boones Crossing Plan. BUSINESS FROM THE PUBLIC Nancy Kirksey,1049 McKinley St.announced that the Mayor’s Prayer Breakfast will take place on April 25 at7:30 a.m. at the Woodburn United Methodist Church and tickets can be purchased for $15. She added that Andrew Palau is the speaker this year. Sergio Gonzalez,1155 Orchard Lane, stated that he had concerns with the $10 charge and the yellow shut off notice that is received when a bill is not paid on the due date. Page 1 - Council Meeting Minutes,April 8, 2019 1 COUNCIL MEETING MINUTES APRIL 8, 2019 CONSENT AGENDA A.Woodburn City Council minutes of March 25, 2019, B.Woodburn City Council Executive Session minutes of March 25, 2019, C.Woodburn Planning Commission minutes of December13, 2018, D.Liquor License Application for Tito’s Bar, LLC., E.Building Activity for March 2019. Councilor Ellsworth asked that itemD.,the liquor license application for Tito’s Bar, LLC., be removed from the consent agenda.Ellsworth/Schaub…adopt the Consent Agendaafter removing item D.,the liquor license application for Tito’s Bar, LLC. The motion passed unanimously. LIQUOR LICENSE APPLICATION FOR TITO’S BAR, LLC. Deputy Police Chief Pilcher provided a staff report and explained their recommendation for denial was based on the criminal history of the applicant.Ellsworth/Cornwell… recommend to not approve the liquor license application for Tito’s Bar, LLC.The motion passed unanimously. COUNCIL BILL NO. 3095 - AN ORDINANCE RELATING TO WARD BOUNDARIES, PLACING ANNEXED PROPERTY IN WARD V, AND DECLARING AN EMERGENCY Schaubintroduced Council Bill No. 3095.City Administrator Derickson provided a staff report. City Recorder Pierson read the billtwiceby title only since there were no objections from the Council. On roll call vote for final passage, the bill passed unanimously. Council President Carneydeclared Council Bill No. 3095 duly passed. MEMORANDUM OF AGREEMENT WITH THE OREGON STATE HISTORIC PRESERVATION OFFICE (SHPO) REGARDING THE FORMER PIX THEATER PROPERTY (461 N. FIRST STREET) City Administrator Derickson provided a staff report.Schaub/Ellsworth…Approve the measures of preservation reached between the City and SHPO regarding artifacts from the PIX Theater, and authorize the City Administrator to sign a Memorandum of Agreement (MOA) with SHPO to that effect. The motion passed unanimously. APPROVAL OF FIRST STREET CONTRACT CHANGE ORDERS FOR ENGINEERING SERVICES TO HARPER HOUF PETERSON RIGHELLIS (HHPR), INC. Public Works Director Liljequist provided a staff report. Schaub/Ellsworth… approve contract change orders in the amount not to exceed $148,890 to Harper Houf Peterson Righellis (HHPR), Inc. for additional engineering services for design and construction management of the First Street Improvements Project and authorize the City Administrator to Page 2 - Council Meeting Minutes,April 8, 2019 2 COUNCIL MEETING MINUTES APRIL 8, 2019 sign the contract change orders. The motion passed unanimously. CITY ADMINISTRATOR’S REPORT City Administrator Derickson reported the following: They will continue to advertise the Ward 1 vacancy. The Library bathrooms have seen extensive damage and are closed while they are being repaired. The City is looking at ways to try to improve the security of the bathrooms. th There will be a TSP meeting on April 24 from 5:30 p.m. to 7:00 p.m. at 1274 5St. The Mural Committee will be holding a public hearing on April 17at the Police DepartmentCommunity room at 5:30 p.m. The Pix Theater demolition is scheduled to begin on April 22. It may take up to 2 weeks for the project to be completed. The Budget Committee meeting is scheduled for April 27at 9:00 a.m. and will take place at the Police Department Community room. Local Author Ewart Brown will be providing training to department heads on April 10 and speaking about serving and serving as a local government person. The community center poll of the registered voters in Woodburn will be taking place and wanted to let the community know that it is a legitimate call and hope that people will respond. The City Hall project is on budget and expected to be done by July. The City Council Goals have been included at the end of the agenda and he will be marking agenda items with the goal numbers that correspond with it. th April 12he will be at the League of Oregon Cities Conference in Ashland. He was invited to speak at the NW Regional Managers Conference on May 1 in Hood River to speak about emergency management and community recovery from tragic events. He mentioned that Gustavo has resigned from the City, thanked him for his service to the City, and wished him the best on his next endeavor. MAYOR AND COUNCIL REPORTS Councilor Morris encouraged those who live in Ward 1 to considerapplying for the open position and that it is very rewarding to serve on the Council. Councilor Schaub concurred with Councilor Morris and added that she visited the tulip Page 3 - Council Meeting Minutes,April 8, 2019 3 COUNCIL MEETING MINUTES APRIL 8, 2019 festival and it was gorgeous. Councilor Ellsworth also encouraged people to apply for Ward 1,but if you do notwant to do that, to please attend the open house to meet the prospective candidates. She also stated that she would be attending the Mayor’s Prayer breakfast. Councilor Cornwell thanked Councilor Carney for running the meeting so smoothly. Councilor Carney stated the he is disappointed to hear about the vandalism in the library bathroom. He expressed his appreciation for the friendship he has formed with Gustavo and wished him all the best. EXECUTIVE SESSION Council President Carney entertained a motion to adjourn into executive session under the authority of ORS 192.660(2)(h) and ORS 192.660(2)(f), Ellsworth/Schaub… move into executive session. The motion passed unanimously. The Council adjourned to executive session at 8:31 p.m. and reconvened at 9:08 p.m. Council President Carneystated that no action was taken by the Council while in executive session. COUNCIL BILL NO. 3096 - A RESOLUTION INITIATING CONSIDERATION OF LEGISLATIVE AMENDMENTS TO THE WOODBURN DEVELOPMENT ORDINANCE AND THE WOODBURN COMPREHENSIVE PLAN City Recorder Pierson read the billby title only since there were no objections from the Council. On roll call vote for final passage, the bill passed unanimously. Council President Carney declared Council Bill No. 3096 duly passed. ADJOURNMENT Ellsworth/Cornwell… meeting be adjourned. The motion passed unanimously. The meeting adjourned at 9:12 p.m. APPROVED ERIC SWENSON, MAYOR ATTEST Heather Pierson,City Recorder City of Woodburn, Oregon Page 4 - Council Meeting Minutes,April 8, 2019 4 EXECUTIVE SESSION COUNCIL MEETING MINUTES APRIL 8, 2019 DATEWOODBURN PUBLIC LIBRARY,CITY OF WOODBURN, COUNTY OF MARION, STATE OF OREGON,APRIL 8, 2019 CONVENEDTheCouncil met in executive session at 8:31 p.m. with Council President Carney presiding. ROLL CALL Mayor Swenson Absent Councilor Carney Present Councilor Cornwell Present Councilor Schaub Present Councilor Morris Present Councilor Ellsworth Present Councilor Carney reminded Councilors and staff that information discussed in executive session is not to be discussed with the public. Media Present: None. Staff Present:City Administrator Derickson, City Attorney Shields, Assistant City Administrator Row, Community Development Director Kerr, Assistant City Attorney Granum, City Recorder Pierson The executive session was called: To consult with counsel concerning the legal rights and duties of a public body with regard to current litigation or litigation likely to be filed pursuant to ORS 192.660 (2)(h). To consider records that are exempt by law from public inspection pursuant to ORS 192.660 (2)(f). ADJOURNMENT The executive session adjourned at 9:08 p.m. APPROVED_______________________________ Eric Swenson, Mayor ATTEST_______________________________ Heather Pierson,CityRecorder City of Woodburn, Oregon Page 1 – Executive Session, Council Meeting Minutes, April 8, 2019 5 Agenda Item April 22, 2019 TO:Honorable Mayor and City Council through City Administrator THRU: James C. Ferraris, Chief of Police FROM:Andy Shadrin,Lieutenant SUBJECT:Liquor License Application RECOMMENDATION: The Woodburn City Council recommends thatthe OLCC approve the Liquor License Application for El Potrero Night Club, Corp. : BACKGROUND Applicant: Antonio Gabriel Hernandez Alma Lorena Gabriel Hernandez 9009 W. Mall Dr. # 1604 Everett, WA 98208 509-439-7307 Point of Contact: Antonio Gabriel Hernandez 9009 W. Mall Dr. # 1604 Everett, WA 98208 509-439-7307 Business:El Potrero Night Club, Corp. 990 N. Pacific Hwy. Ste. B & C 503 902-0175 Owners: Antonio Gabriel Hernandez, President Alma Lorena Gabriel Hernandez, Secretary Agenda Item Review:City Administrator ____x__City Attorney ___x___Finance _x____ 6 Honorable Mayor and City Council April 22, 2019 Page 2 License Type: Full On-Premises, Commercial -Permits beer, wine, cider sales and liquor for on premiseconsumption. May sell malt beverages, wine and cider in “growlers” for consumption off the licensed premises. On March 15, 2019,the Woodburn Police Department received an application forFull On-Premises, Commercialliquor license forEl Protero Night Club, Corp. The business will also contain a bar top for alcohol sales. The business will also have a stage for live bands. The hours for live or DJ music will be 8:00 PM to 2:00 AM Friday, Saturday and Sunday. The restaurant sells food for consumption during all hours of operation. El Potrero Night Club is located at 990 N. Pacific Hwy, Ste. B & C, Woodburn, Oregon 97071. The hours of operation are from 2:00 P.M. to 2:30 A.M., Friday through Sunday. 3:00 P.M. to 11:00 P.M., Tuesday through Thursday. The business will be closed Mondays.The business will provide entertainment in the form of live music, recorded music, DJ, dancing, karaoke and pool tables. The business will contain a restaurant with anticipated seating of up to 279 person and will offer no outsideseating. The Police Department hasnot received any communication from the public or surrounding businesses in support of or against the proposed change. : DISCUSSION The Police Department has completed a background investigationon the subjects listed on the OLCC application. Antonio Gabriel Hernandez and Alma Gabriel Hernandez were clear in all database checkswithno criminal records. Antonio Gabriel Hernandez currently holds a suspended driver status in Oregon and was convicted of a traffic violation in March 2018, for Driving Uninsured. FINANCIAL IMPACT: None 7 8 9 10 11 12 13 14 15 16 17 18 19 Agenda Item April 22, 2019 TO:Honorable Mayor and City Council through City Administrator FROM:Eric Liljequist, Public Works Director SUBJECT:Hardcastle Avenue Realignment at Railroad Project – Agreement between Union Pacific Railroad and the City of Woodburn (Goal Numbers 2,5) RECOMMENDATION: Authorize the City Administrator to execute aPublic Highway At-Grade Crossing Agreement for the Hardcastle Avenue Realignment at Railroad project. BACKGROUND: Due to traffic and pedestrian safety concerns, the Hardcastle Avenue at Railroad Project was implemented to enable easier pedestrian and truck turning movements through the existing intersection of Hardcastle Avenue and Front Street. A major component of this project is coordination with the Union Pacific Railroad(UPRR). DISCUSSION: In order to complete the required project road widening, UPRR’s tracks and signal apparatus must be reconfigured. UPRRdoes not allow any outside contractor perform work on their railroad system. UPRRcrews aremust complete the required track and signal modifications. Therefore, UPRR requires local jurisdictions to enter into an agreement with UPRR through a Public Highway At-Grade Crossing Agreement to solidify terms and conditionsof the required improvements. Part of this agreement involves the actual work to be performed by UPRR and the associated costs, which are the responsibility of the City of Woodburn. Execution of thePublic Highway At-Grade Crossing Agreement will allow the Hardcastle Avenue Realignment at Railroad project to proceed. FINANCIAL IMPACT: Execution of thePublic Highway At-Grade Crossing Agreement will require Agenda Item Review:City Administrator __x____City Attorney ___x___Finance __x___ 20 Honorable Mayor and City Council April22, 2019 Page 2 payment from the City to UPRR in the amount of$44,700 for an easement and an estimated $795,060 for required UPRR track and signal expenses incurred for the HardcastleAvenue Realignment at Railroad project. These expenses are already accounted for in the approved FY 2018-19 and proposed FY 2019-2020 Street Fund and Street SDC budgets. 21 Public Highway At-Grade Crossing 03/01/13 Standard Form Approved, AVP-Law UP Real Estate Folder No.: 3140-05 Audit Number ___________________ PUBLIC HIGHWAY AT-GRADE CROSSINGAGREEMENT HARDCASTLE STREET DOT NUMBER759605L MILE POST 735.50, BROOKLYN SUBDIVISION WOODBURN, MARIONCOUNTY, OREGON THIS AGREEMENT("Agreement") is made and entered into as of the ____ day of ___________, 20____ ("Effective Date"), by and between UNION PACIFIC RAILROAD COMPANY, a Delaware corporation, to be addressed at Real Estate Department, 1400 Douglas Street, Mail Stop 1690, Omaha, Nebraska 68179 (”Railroad") and the CITY OF WOODBURN, a municipal corporation or political subdivisionof the State of Oregonto be addressed at 190 Garfield Street, Woodburn, OR 97071("Political Body"). RECITALS: The Political Body desires to undertake as its project (the “Project”) the re- aligning and widening of the road over the Hardcastle Street at-grade public crossing, DOT Number 759605Lat Railroad’s Mile Post 735.50on Railroad’s Brooklyn Subdivision at or near Woodburn, MarionCounty, Oregon(the “Crossing Area”).The area currently used by the Political Body is depicted on Exhibit Aas the “Existing Crossing Area” and the new area which the Political Body needs in order to construct the Project is the “New Crossing Area”. The Existing Crossing Area and New Crossing Area are collectively referred to as the Crossing Area. The New Crossing Area is described in the legal description marked Exhibit A-1.The portion of the roadway located within the Crossing Area is the "Roadway". The Railroad and the Political Body are entering into this Agreement to cover the above. AGREEMENT: NOW, THEREFORE, it is mutually agreed by and between the parties hereto as follows: 1 22 Public Highway At-Grade Crossing 03/01/13 Standard Form Approved, AVP-Law Section 1. EXHIBIT B The general terms and conditions marked Exhibit B, are attached heretoand hereby made a part hereof. Section 2. RAILROAD GRANTS RIGHT For and in consideration FORTY FOURTHOUSAND SEVEN HUNDRED DOLLARS ($44,700.00)to be paid by the Political Body to the Railroad upon the execution and delivery of this Agreement andin further consideration of the Political Body’s agreement to perform and comply with the terms of this Agreement, the Railroad hereby grants to the Political Body the right to construct, maintainandrepair the Roadway over and across the Crossing Area. Section 3. DEFINITION OF CONTRACTOR For purposes of this Agreement the term “Contractor” shall mean the contractor or contractors hired by the Political Body to perform any Project work on any portion of the Railroad’s property and shall also include the Contractor’s subcontractors and the Contractor’s and subcontractor’s respective employees, officers and agents, and others acting under its or their authority. Section 4. CONTRACTOR'S RIGHT OF ENTRY AGREEMENT - INSURANCE A.Prior to Contractor performingany workwithin the Crossing Area and any subsequent maintenance and repair work, the Political Body shall require the Contractor to: execute the Railroad's then current Contractor's Right of Entry Agreement obtain the then current insurance required in the Contractor’s Right of Entry Agreement; and provide such insurance policies, certificates, binders and/or endorsements to the Railroad. B.The Railroad's current Contractor's Right of Entry Agreement is marked Exhibit D, attached hereto and hereby made a part hereof. The Political Body confirms that it will inform its Contractor that it is required to execute such form of agreement and obtain the required insurance before commencing any work on any Railroad property. Under no circumstances will the Contractor be allowed on the Railroad's property without first executing the Railroad's Contractor's Right of Entry Agreement and obtaining the insurance set forth therein and also providing to the Railroad the insurance policies, binders, certificates and/or endorsements described therein. C.All insurance correspondence, binders, policies, certificates and/or endorsements shall be sent to: 2 23 Public Highway At-Grade Crossing 03/01/13 Standard Form Approved, AVP-Law Senior Manager - Contracts Union Pacific Railroad Company Real Estate Department 1400 Douglas Street, Mail Stop 1690 Omaha, NE 68179-1690 UP File Folder No. 3140-05 D.If the Political Body's own employees will be performing any of the Project work, the Political Body may self-insure all or a portion of the insurance coverage subject to the Railroad's prior review and approval. Section 5. FEDERAL AID POLICY GUIDE If the Political Body will be receiving any federal funding for the Project, the current rules, regulations and provisions of the Federal Aid Policy Guide as contained in 23 CFR 140, Subpart I and 23 CFR 646, Subparts A and B are incorporated into this Agreement by reference. Section 6. NO PROJECT EXPENSES TO BE BORNE BY RAILROAD The Political Body agrees that no Project costs and expenses are to be borne by the Railroad. In addition, the Railroad is not required to contribute any funding for the Project. Section 7. WORK TO BE PERFORMED BY RAILROAD; BILLING SENT TO POLITICAL BODY; POLITICAL BODY'S PAYMENT OF BILLS A.The work to be performed by the Railroad, at the Political Body's sole cost and expense, is described in the Railroad's Summary of Material and Force Account Work dated September26, 2018, and October 3, 2018, marked Exhibit C, attached hereto and hereby made a part hereof (the "Estimates"). As set forth in the Estimates, the Railroad's estimated cost for the Railroad's work associated with the Projectis Seven Hundred Ninety FiveThousand SixtyDollars ($795,060.00). B.The Railroad, if it so elects, may recalculate and update the Estimates submitted to the Political Body in the event the PoliticalBody does not commence construction on the portion of the Project located on the Railroad’s property within six (6) months from the date of the Estimates. C.The Political Body acknowledges that the Estimatesdo not includean estimate of flagging or other protective service costs that are to be paid by the Political Body or the Contractor in connection with flagging or other protective services provided by the Railroad in connection with the Project. All of such costs incurred by the Railroad are to be paid by the Political Body or the Contractor as determined by the Railroad and the Political Body. If it is determined that the Railroad will be billing the Contractor directly for such costs, the Political Body agrees that it will pay the Railroad for any 3 24 Public Highway At-Grade Crossing 03/01/13 Standard Form Approved, AVP-Law flagging costs that have not been paid by any Contractor within thirty (30) days of the Contractor's receipt of billing. D.The Railroad shall send progressive billing to the Political Bodyduring the Projectand final billing to the Political Body within one hundred eighty (180) days after receiving written notice from the Political Body that all Project work affecting the Railroad's property has been completed. E. The Political Body agrees to reimburse the Railroad within thirty (30) days of its receiptof billing from the Railroad for one hundred percent (100%) of all actual costs incurred by the Railroad in connection with the Project including, but not limited to, all actual costs of engineering review(including preliminary engineering review costs incurred by Railroad prior to the Effective Date of this Agreement),construction, inspection, flagging(unless flagging costs are to be billed directly to the Contractor), procurement of materials, equipment rental, manpower and deliveries to the job site and all direct and indirect overhead labor/construction costs including Railroad'sstandard additive rates. Section 8. PLANS A.The Political Body, at its expense, shall prepare, or cause to be prepared by others, the detailed plans and specifications for the Project and the Structure and submit such plans and specifications to the Railroad’s Assistant Vice President Engineering-Design, or his authorized representative, for prior review and approval. The plans and specifications shall include all Roadway layout specifications, cross sections and elevations, associated drainage, and other appurtenances. B.The final one hundred percent (100%) completed plans that are approved in writing by the Railroad’s Assistant Vice President Engineering-Design, or his authorized representative, are hereinafter referred to as the “Plans”. The Plans are hereby made a part of this Agreement by reference. C.No changes in the Plans shall be made unless the Railroad has consented to such changes in writing. D.The Railroad's review and approval of the Plans will in no way relieve the Political Body or the Contractor from their responsibilities, obligations and/or liabilities under this Agreement, and will be given with the understanding that the Railroad makes no representations or warranty as to the validity, accuracy, legal compliance or completeness of the Plans and that any reliance by the Political Body or Contractor on the Plans is at the risk of the Political Bodyand Contractor. Section 9.NON-RAILROAD IMPROVEMENTS A.Submittal of plans and specifications for protecting, encasing, reinforcing, relocation, replacing, removing and abandoning in place all non-railroad owned facilities 4 25 Public Highway At-Grade Crossing 03/01/13 Standard Form Approved, AVP-Law (the "Non Railroad Facilities") affected by the Project including, without limitation, utilities, fiber optics, pipelines, wirelines, communication lines and fences is required under Section 8. The Non Railroad Facilities plans and specifications shall comply with Railroad's standard specifications and requirements, including, withoutlimitation, American Railway Engineering and Maintenance-of-Way Association ("AREMA") standards and guidelines. Railroad has no obligation to supply additional land for any Non Railroad Facilities and does not waive its right to assert preemption defenses, challenge the right-to-take, or pursue compensation in any condemnation action, regardless if the submitted Non Railroad Facilities plans and specifications comply with Railroad's standard specifications and requirements. Railroad has no obligation to permit any Non Railroad Facilities to be abandoned in place or relocated on Railroad's property. B.Upon Railroad's approval of submitted Non Railroad Facilities plans and specifications, Railroad will attempt to incorporate them into new agreements or supplements of existing agreements with Non Railroad Facilities owners or operators. Railroad may use its standard terms and conditions, including, without limitation, its standard license fee and administrative charges when requiring supplements or new agreements for Non Railroad Facilities. Non Railroad Facilities work shall not commence before a supplement or new agreement has been fully executed by Railroad and the Non Railroad Facilities owner or operator, or before Railroad and Political Body mutually agree in writing to (i) deem the approved Non Railroad Facilities plans and specifications to be Plans pursuant to Section 8B, (ii) deem the Non Railroad Facilities part of the Structure, and (iii) supplement this Agreement with terms and conditions covering the Non Railroad Facilities. Section 10.EFFECTIVE DATE; TERM; TERMINATION A.This Agreement is effective as of the Effective Date first herein writtenand shall continue in full force and effect for as long as the Roadway remains on the Railroad’s property. B.The Railroad, if it so elects, may terminate this Agreement effective upon delivery of written notice to the Political Body in the event the Political Body does not commence construction on the portion of the Project located on the Railroad’sproperty within twelve (12) months from the Effective Date. C.If the Agreement is terminated as provided above, or for any other reason, the Political Body shall pay to the Railroad all actual costs incurred by the Railroad in connection with the Project up to the date of termination, including, without limitation, all actual costs incurred by the Railroad in connection with reviewing any preliminary or final Project Plans. 5 26 Public Highway At-Grade Crossing 03/01/13 Standard Form Approved, AVP-Law Section 11.CONDITIONS TO BE MET BEFORE POLITICAL BODY CAN COMMENCE WORK Neither the Political Body nor the Contractor may commence any work within the Crossing Area or on any other Railroad property until: (i)The Railroad and Political Body have executed this Agreement. (ii)The Railroad has provided to the Political Body the Railroad’swritten approval of the Plans. (iii)Each Contractor has executed Railroad’s Contractor’s Right of Entry Agreement and has obtained and/or provided to the Railroad the insurancepolicies, certificates, binders, and/or endorsements required under the Contractor’s Right of Entry Agreement. (iv) Each Contractor has given the advance notice(s) required under the Contractor's Right of Entry Agreement to the Railroad Representative named in the Contactor's Right of Entry Agreement. Section 12.FUTURE PROJECTS Future projects involving substantial maintenance, repair, reconstruction, renewal and/or demolition of the Roadwayshall not commence until Railroad and Political Body agree on the plans for such future projects, cost allocations, right of entry terms and conditions and temporary construction rights, terms and conditions. Section 13. ASSIGNMENT; SUCCESSORS AND ASSIGNS A.Political Body shall not assign this Agreement without the prior written consent of Railroad. B.Subjectto the provisions of Paragraph Aabove, this Agreement shall inure to the benefit of and be binding upon the successors and assigns of Railroad and Political Body. Section 14.SPECIAL PROVISIONS PERTAINING TO AMERICAN RECOVERY AND REINVESTMENT ACT OF 2009 If the Political Body will be receiving American Recovery and Reinvestment Act ("ARRA") funding for the Project, the Political Body agrees that it is responsible in performing and completing all ARRA reporting documents for the Project. The Political Body confirms and acknowledges that Section 1512 of the ARRA provisions applies only to a "recipient" receiving ARRA funding directing from the federal government and, therefore, (i) the ARRA reporting requirements are the responsibility of the Political Body and not of theRailroad, and (ii) the Political Body shall not delegate any ARRA 6 27 Public Highway At-Grade Crossing 03/01/13 Standard Form Approved, AVP-Law reporting responsibilities to the Railroad. The Political Body also confirms and acknowledges that (i) the Railroad shall provide to the Political Body the Railroad's standard and customary billing for expenses incurred by the Railroad for the Project including the Railroad's standard and customary documentation to support such billing, and (ii) such standard and customary billing and documentation from the Railroad provides the informationneeded by the Political Body to perform and complete the ARRA reporting documents. The Railroad confirms that the Political Body and the Federal Highway Administration shall have the right to audit the Railroad's billing and documentation for the Projectas provided in Section 11 of Exhibit Bof this Agreement. IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executedas of the Effective Datefirst herein written. UNION PACIFIC RAILROAD COMPANY (Federal Tax ID #94-6001323) By:_________________________________ Printed Name:________________________ Title:________________________________ CITY OF WOODBURN By:________________________________ Printed Name:________________________ Title: ________________________________ 7 28 Public Highway At-Grade Crossing 03/01/13 Standard Form Approved, AVP-Law EXHIBIT A TO PUBLIC HIGHWAY AT GRADE CROSSING AGREEMENT Exhibit Awill be a print showing the Crossing Area (see Recitals) 29 30 Public Highway At-Grade Crossing 03/01/13 Standard Form Approved, AVP-Law EXHIBIT A-1 TO PUBLIC HIGHWAY AT GRADE CROSSING AGREEMENT Exhibit A-1 will be the legal description for the New Crossing Area(see Recitals) 1 31 32 33 Public Highway At-Grade Crossing 03/01/13 Standard Form Approved, AVP-Law EXHIBIT B TO PUBLIC HIGHWAY AT GRADE CROSSING AGREEMENT SECTION 1.CONDITIONS AND COVENANTS A.The Railroad makes no covenant or warranty of title for quiet possession or against encumbrances. The Political Body shall not use or permit use of the Crossing Area for any purposes other than those described in this Agreement. Without limiting the foregoing, the Political Body shall not use or permit use of the Crossing Area for railroad purposes, or for gas, oil or gasoline pipe lines. Any lines constructed on the Railroad's property by or under authority of the Political Body for the purpose of conveying electric power or communications incidental to the Political Body's use of the property for highway purposes shall be constructed in accordance with specifications and requirements of the Railroad, and in such manner as not adversely to affect communication or signal lines of the Railroad or its licensees now or hereafter located upon said property. No nonparty shall be admitted by the Political Body to use or occupy any part of the Railroad's property without the Railroad's written consent. Nothing herein shall obligate the Railroad to give such consent. B.The Railroad reserves the right to cross the Crossing Area with such railroad tracks as may be required for its convenience or purposes. In the event the Railroad shall place additional tracks upon the Crossing Area, the Political Body shall, at its sole cost and expense, modify the Roadwayto conform with all tracks within the Crossing Area. C.The right hereby granted is subject to any existing encumbrances and rights (whether public or private), recorded or unrecorded, and also to any renewals thereof. The Political Body shall not damage, destroy or interfere with the property or rights of nonparties in, upon or relating to the Railroad'sproperty, unless the Political Body at its own expense settles with and obtains releases from such nonparties. D.The Railroad reserves the right to use and to grant to others the right to use the Crossing Area for any purpose not inconsistent with the right hereby granted, including, but not by way of limitation, the right to construct, reconstruct, maintain, operate, repair, alter, renew and replace tracks, facilities and appurtenances on the property; andthe right to cross the Crossing Area with all kinds of equipment. E.So far as it lawfully may do so, the Political Body will assume, bear and pay all taxes and assessments of whatsoever nature or kind (whether general, local or special) levied or assessed upon or against the Crossing Area, excepting taxes levied upon and against the property as a component part of the Railroad's operating property. 34 Public Highway At-Grade Crossing 03/01/13 Standard Form Approved, AVP-Law F.If any property or rights other than the right hereby granted are necessary for the construction, maintenance and use of the Roadway and its appurtenances, or for the performance of any work in connection with the Project, the Political Body will acquire all such other property and rights at its own expense and without expense to the Railroad. SECTION 2.CONSTRUCTION OF ROADWAY A.The Political Body, at its expense, will apply for and obtain all public authority required by law, ordinance, rule or regulation for the Project, and will furnish the Railroad upon request with satisfactory evidence that such authority has been obtained. B.Except as may be otherwise specifically provided herein, the Political Body, at its expense, will furnish all necessary labor, material and equipment, and shall construct and complete the Roadway and all appurtenances thereof. The appurtenances shall include, without limitation, all necessary and proper highway warning devices (except those installed by the Railroad within its right of way) and all necessary drainage facilities, guard rails or barriers, and right of way fences between the Roadway and the railroad tracks. Upon completion of the Project, the Political Body shall remove from the Railroad's property all temporary structures and false work, and will leave the Crossing Area in a condition satisfactory to the Railroad. C.All construction work of the Political Body upon the Railroad's property (including, but not limited to, construction of the Roadway and all appurtenances and all related and incidental work)shall be performed and completed in a manner satisfactory to the Assistant Vice President Engineering-Design of the Railroad or his authorized representative and in compliancewith the Plans, and other guidelines furnished by the Railroad. D.All construction work of the Political Body shall be performed diligently and completed within a reasonable time. No part of the Project shall be suspended, discontinued or unduly delayed without the Railroad's written consent, and subject to such reasonable conditions as the Railroad may specify. It is understood that the Railroad's tracks at and in the vicinity of the work will be in constant or frequent use during progress of the work and that movement or stoppage of trains, engines or cars may cause delays in the work of the Political Body. The Political Body hereby assumes the risk of any such delays and agrees that no claims for damageson account of any delay shall be made against the Railroadby the State and/or the Contractor. SECTION 3.INJURY AND DAMAGETO PROPERTY If the Political Body, in the performance of any work contemplated by this Agreement or by the failure to do or perform anything for which the Political Body is responsible under the provisions of this Agreement, shall injure, damage or destroy 35 Public Highway At-Grade Crossing 03/01/13 Standard Form Approved, AVP-Law any property of the Railroad or of any other person lawfully occupying or using the property of the Railroad, such property shall be replaced or repaired by the Political Body at the Political Body's own expense, or by the Railroad at the expense of the Political Body, and to the satisfaction of the Railroad's Assistant Vice President Engineering-Design. SECTION 4.RAILROAD MAY USE CONTRACTORS TO PERFORM WORK The Railroad may contract for the performance of any of its work by other than the Railroad forces. The Railroad shall notify the Political Body of the contract price within ninety (90) days after it is awarded. Unless the Railroad's work is to be performed on a fixed price basis, the Political Body shall reimburse the Railroad for the amount ofthe contract. SECTION 5.MAINTENANCE AND REPAIRS A.The Political Body shall, at its own sole expense, maintain, repair, and renew, or cause to be maintained, repaired and renewed, the entire Crossing Area and Roadway, except the portions between the track tie ends, which shall be maintained by and at the expense of the Railroad. B.If, in the future, the Political Body elects to have the surfacing material between the track tie ends, or between tracks if there is more than one railroad track across the Crossing Area, replaced with paving or some surfacing material other than timer planking, the Railroad, at the Political Body’s expense, shall install such replacement surfacing, and in the future, to the extent repair or replacement of the surfacing is necessitated by repair or rehabilitation of the Railroad’s tracks through the Crossing Area, the Political Body shall bear the expense of such repairs or replacement. SECTION 6.CHANGES IN GRADE If at any time the Railroad shall elect, or be required by competent authority to, raise or lower the grade of all or any portion of the track(s) located within the Crossing Area, the Political Body shall, at its own expense, conform the Roadway to conform with the change of grade of the trackage. SECTION 7.REARRANGEMENT OF WARNING DEVICES If the change or rearrangement of any warning device installed hereunder is necessitated for public or Railroad convenience or on account of improvements for either the Railroad, highway or both, the parties will apportionthe expense incidental thereto between themselves by negotiation, agreement or by the order of a competent authority before the change or rearrangement is undertaken. 36 Public Highway At-Grade Crossing 03/01/13 Standard Form Approved, AVP-Law SECTION 8.SAFETY MEASURES; PROTECTION OF RAILROAD COMPANY OPERATIONS It is understood and recognized that safety and continuity of the Railroad's operations and communications are of the utmost importance; and in order that the same may be adequately safeguarded, protected and assured, and in order that accidents may be prevented and avoided, it is agreed with respect to all of said work of the Political Body that the work will be performed in a safe manner and in conformity with the following standards: A.Definitions. All references in this Agreement to the Political Body shall also include the Contractor and their respective officers, agents and employees, and others acting under its or their authority; and all references in this Agreement to work of the Political Body shall include work both within and outside of the Railroad’s property. B.Entry on to Railroad's Property by Political Body. If the Political Body's employees need to enter Railroad's property in order to perform an inspection of the Roadway, minor maintenance or other activities, the Political Body shall first provide at least ten (10) working days advance notice to the Railroad Representative. With respect to such entry on to Railroad’s property, the Political Body, to the extent permitted by law, agrees to release, defend and indemnify the Railroad from and against any loss, damage, injury, liability, claim, cost or expense incurred by any person including, without limitation, the Political Body’s employees, or damage to any property or equipment (collectively the “Loss”) that arises from the presence or activitiesof Political Body’s employees on Railroad’s property, except to the extent that any Loss is caused by the sole direct negligence of Railroad. C.Flagging. (i)If the Political Body's employees need to enter Railroad's property as provided in Paragraph Babove, the Political Body agrees to notify the Railroad Representative at least thirty (30)working days in advance of proposed performance of any work by Political Bodyin which any person or equipment will be within twenty-five (25) feet of any track, or will be near enough to any track that any equipment extension (such as, but not limited to, a crane boom) will reach to within twenty-five (25) feet of any track. No work of any kind shall be performed, and no person, equipment, machinery, tool(s), material(s), vehicle(s), or thing(s) shall be located, operated, placed, or stored within twenty-five (25) feet of any of Railroad's track(s) at any time, for any reason, unless and until a Railroad flagman is provided to watch for trains.Upon receipt of such thirty (30) day notice, the Railroad Representative will determine and inform Political Bodywhether a flagman need be present and whether Political Body needs to implement any special protective or safety measures. If flagging or other special protective or safety measures are performed by Railroad, Railroad will bill Political Bodyfor suchexpenses incurred by Railroad. If Railroad performs any flagging, or other special protective or safety measures are performed by Railroad, 37 Public Highway At-Grade Crossing 03/01/13 Standard Form Approved, AVP-Law Political Bodyagrees that Political Bodyis not relieved of any of its responsibilities or liabilities set forth in this Agreement. (ii)The rate of pay per hour for each flagman will be the prevailing hourly rate in effect for an eight-hour day for the class of flagmen used during regularly assigned hours and overtime in accordance with Labor Agreements and Schedules in effect at the time the work is performed. In addition to the cost of such labor, a composite charge for vacation, holiday, health and welfare, supplemental sickness, Railroad Retirement and unemployment compensation, supplemental pension, Employees Liability and Property Damage and Administration will be included, computed on actual payroll. The composite charge will be the prevailing composite charge in effect at the time the work is performed. One and one-half times the current hourly rate is paid for overtime, Saturdays and Sundays, and two and one-half times current hourly rate for holidays. Wage rates are subject to change, at any time, by law or by agreement between Railroad and its employees, and may be retroactive as a result of negotiations or a ruling of an authorized governmental agency. Additional charges on labor are also subject to change. If the wage rate or additional charges are changed, Political Body shall pay on the basis of the new rates and charges. (iii)Reimbursement to Railroad will be required covering the full eight-hour day during which any flagman is furnished, unless the flagman can be assigned to other Railroad work during a portion of such day, in which event reimbursement will not be required for the portion of the day during which the flagman is engaged in other Railroad work. Reimbursement will also be required for any day not actually worked by the flagman following the flagman's assignment to work on the project for which Railroad is required to pay the flagman and which could not reasonably be avoided by Railroad by assignment of such flagman to other work, even though Political Bodymay not be working during such time. When it becomes necessary for Railroad to bulletin and assign an employee to a flagging position in compliance with union collective bargaining agreements, Political Bodymust provide Railroad a minimum of five (5) days notice prior to the cessation of theneed for a flagman. If five (5) days notice of cessation is not given, Political Bodywill still be required to pay flagging charges for the five (5) day notice period required by union agreement to be given to the employee, even though flagging is not required for that period. An additional thirty (30)days notice must then be given to Railroad if flagging services are needed again after such five day cessation notice has been given to Railroad. D. Compliance With Laws. The Political Body shall complywith all applicable federal, state and local laws, regulations and enactments affecting the work. The Political Body shall use only such methods as are consistent with safety, both as concerns the Political Body, the Political Body's agents and employees, the officers, agents, employees and property of the Railroad and the public in general. The Political Body (without limiting the generality of the foregoing) shall comply with all applicable state and federal occupational safety and health acts and regulations. All Federal Railroad Administration regulations shall be followed when work is performed on the Railroad's premises. If any failure by the Political Body to comply with any such laws, 38 Public Highway At-Grade Crossing 03/01/13 Standard Form Approved, AVP-Law regulations, and enactments, shall result in any fine, penalty, cost or charge being assessed, imposed or charged against the Railroad, the Political Body shall reimburse, andto the extent it may lawfully do so, indemnify the Railroad for any such fine, penalty, cost, or charge, including without limitation attorney's fees, court costs and expenses. The Political Body further agrees in the event of any such action, upon notice thereof being provided by the Railroad, to defend such action free of cost, charge, or expense to the Railroad. E. No Interference or Delays. The Political Body shall not do, suffer or permit anything which will or may obstruct, endanger, interfere with, hinder or delay maintenance or operation of the Railroad's tracks or facilities, or any communication or signal lines, installations or anyappurtenances thereof, or the operations of others lawfully occupying or using the Railroad's property or facilities. F. Supervision. The Political Body, at its own expense, shall adequately police and supervise all work to be performed by the PoliticalBody, and shall not inflict injury to persons or damage to property for the safety of whom or of which the Railroad may be responsible, or to property of the Railroad. The responsibility of the Political Body for safe conduct and adequate policing and supervision of the Project shall not be lessened or otherwise affected by the Railroad's approval of plans and specifications, or by the Railroad's collaboration in performance of any work, or by the presence at the work site of the Railroad's representatives, or by compliance by the Political Body with any requests or recommendations made by such representatives. If a representative of the Railroad is assigned to the Project, the Political Body will give due consideration to suggestions and recommendations made by such representative for the safety and protection of the Railroad's property and operations. G. Suspension of Work. If at any time the Political Body's engineers or the Vice President-Engineering Services of the Railroad or their respective representatives shall be of the opinion that any work of the Political Body is being or is about to be done or prosecuted without due regard and precaution for safety and security, the Political Body shall immediately suspend the work until suitable, adequate and proper protective measures are adopted and provided. H. Removal of Debris. The Political Body shall not cause, suffer or permit material or debris to be deposited or cast upon, or to slide or fall upon any property or facilities of the Railroad; and any such material and debris shall be promptly removed from the Railroad's property by the Political Body at the Political Body's own expense or by the Railroad at the expense of the Political Body. The Political Body shall not cause, suffer or permit any snow to be plowed or cast upon the Railroad's property during snow removal from the Crossing Area. I. Explosives. The Political Body shall not discharge any explosives on or in the vicinity of the Railroad's property without the prior consent of the Railroad's Vice President-Engineering Services, which shall not be given if, in the sole discretion of the Railroad's Vice President-Engineering Services, such discharge would be 39 Public Highway At-Grade Crossing 03/01/13 Standard Form Approved, AVP-Law dangerous or would interfere with the Railroad's property or facilities. For the purposes hereof, the "vicinity of the Railroad's property" shall be deemed to be any place on the Railroad's property or in such close proximity to the Railroad's property that the discharge of explosives could cause injury to the Railroad's employees or other persons, or cause damage to or interference with the facilities or operations on the Railroad's property. The Railroad reserves the right to impose such conditions, restrictions or limitations on the transportation, handling, storage, security and use of explosives as the Railroad, in the Railroad's sole discretion, may deem to be necessary, desirable or appropriate. J. Excavation. The Political Body shall not excavate from existing slopes nor construct new slopes which are excessive and may create hazards of slides or falling rock, or impair or endanger the clearance between existing or new slopes and the tracks of the Railroad. The Political Body shall not do or cause to be done any work which will or may disturb the stability of any area or adversely affect the Railroad's tracks or facilities. The Political Body, at its own expense, shall install and maintain adequate shoring and cribbing for all excavation and/or trenching performed by the Political Body in connection with construction, maintenance or other work. The shoring and cribbing shall be constructed and maintained with materials and in a manner approved by the Railroad's Assistant Vice President Engineering - Design to withstand all stresses likely to be encountered, including any stresses resulting from vibrations caused by the Railroad's operations in the vicinity. K. Drainage. The Political Body, at the Political Body's own expense, shall provide and maintain suitable facilities for draining the Roadway and its appurtenances, and shall not suffer or permit drainage water therefrom to flow or collect upon property of the Railroad. The Political Body, at the Political Body's own expense, shall provide adequate passageway for the waters of any streams, bodies of water and drainage facilities (either natural or artificial, and including water from the Railroad's culvert and drainage facilities), so that said waters may not, because of any facilities or work of the Political Body, be impeded, obstructed, diverted or caused to back up, overflow or damage the property of the Railroad or any part thereof, or property of others. The Political Body shall not obstruct or interfere with existing ditches or drainage facilities. L. Notice. Before commencing any work, the Political Body shall provide the advance notice to the Railroad that is required under the Contractor's Right of Entry Agreement. M. Fiber Optic Cables. Fiber optic cable systems may be buried on the Railroad's property. Protection of the fiber optic cable systems is of extremeimportance since any break could disrupt service to users resulting in business interruption and loss of revenue and profits. Political Body shall telephone the Railroad during normal business hours (7:00 a.m. to 9:00 p.m. Central Time, Monday through Friday, except holidays) at 1-800-336-9193 (also a 24-hour, 7-day number for emergency calls) to determine if fiber optic cable is buried anywhere on the Railroad's premises to be used 40 Public Highway At-Grade Crossing 03/01/13 Standard Form Approved, AVP-Law by the Political Body. If it is, Political Body will telephone the telecommunications company(ies) involved, arrange for a cable locator, and make arrangements for relocation or other protection of the fiber optic cable prior to beginning any work on the Railroad's premises. SECTION 9.INTERIM WARNING DEVICES If at anytime it is determined by a competent authority, by the Political Body, or by agreement between the parties, that new or improved train activated warning devices should be installed at the Crossing Area, the Political Body shall install adequate temporary warning devices or signs and impose appropriate vehicular control measures to protect the motoring public until the new or improved devices have been installed. SECTION 10.OTHER RAILROADS All protective and indemnifying provisions of this Agreement shall inure to the benefit of the Railroad and any other railroad company lawfully using the Railroad's property or facilities. SECTION 11.BOOKS AND RECORDS The books, papers, records and accounts of Railroad, so far as they relate to the items of expensefor the materials to be provided by Railroad under this Project, or are associated with the work to be performed by Railroad under this Project, shall be open to inspection and audit at Railroad's offices in Omaha, Nebraska, during normal business hours by the agents and authorized representatives of Political Body for a period of three (3) years following the date of Railroad's last billing sent to Political Body. SECTION 12.REMEDIES FOR BREACH OR NONUSE A.If the Political Body shall fail, refuse or neglect to perform and abide by the terms of this Agreement, the Railroad, in addition to any other rights and remedies, may perform any work which in the judgment of the Railroad is necessary to place the Roadway and appurtenances in such condition as will not menace, endanger or interfere with the Railroad's facilities or operations or jeopardize the Railroad's employees; and the Political Body will reimburse the Railroad for the expenses thereof. B.Nonuse by the Political Body of the Crossing Area for public highway purposes continuing at any time for a period of eighteen (18) months shall, at the option of the Railroad, work a termination of this Agreement and of all rights of the Political Body hereunder. C.The Political Body will surrender peaceable possession of the Crossing Area 41 Public Highway At-Grade Crossing 03/01/13 Standard Form Approved, AVP-Law and Roadway upon termination of this Agreement. Termination of this Agreement shall not affect any rights, obligations or liabilities of the parties, accrued or otherwise, which may have arisen prior to termination. SECTION 13. MODIFICATION - ENTIRE AGREEMENT No waiver, modification or amendment of this Agreement shall be of any force or effect unless made in writing, signed by the Political Body and the Railroad and specifying with particularity the nature and extent of such waiver, modification or amendment. Any waiver by the Railroad of any default by the Political Body shall not affect or impair any right arising from any subsequent default. This Agreement and Exhibits attached hereto and made a part hereof constitute the entire understanding between the Political Body and the Railroad and cancel and supersede any prior negotiations, understandings or agreements, whether written or oral, with respect to the work or any part thereof. 42 Public Highway At-Grade Crossing 03/01/13 Standard Form Approved, AVP-Law EXHIBIT C TO PUBLIC HIGHWAY AT GRADE CROSSING AGREEMENT Exhibit C will be Railroad's Material and Force Agreement Estimates(see Recitals) 43 DATE: 2018-10-03 ESTIMATE OF MATERIAL AND FORCE ACCOUNT WORK BY THE UNION PACIFIC RAILROAD THISESTIMATE GOOD FOR 6 MONTHS EXPIRATION DATE IS :2019-04-03 DESCRIPTION OF WORK: WOODBURN, OR / HARDCASTLE ST. / DOT#759605L-2 / BROOKLYN SUB MP 735.50 REMOVE EXISTING CROSSING SURFACE AND REPLACE WITH 136' RDX PANEL. INCLUDING TIES, RAIL AND OTM PROJECT WAS BUILT USING FED ADDITIVE W/ OVERHEAD AND INDIRECT 234% UPRR WILL BE REIMBURSED FOR 100% OF COSTS BY THE CITY OF WOODBURN. PID: 106443 AWO: MP,SUBDIV: 735.50, BROOKLYN SERVICE UNIT: 18CITY: WOODBURN STATE: OR DESCRIPTION QTY UNIT LABOR MATERIAL RECOLL UPRR TOTAL ------------------------------------------------ ENGINEERING WORK ENGINEERING6390 6390 6390 LABOR ADDITIVE 234% 14953 14953 14953 --------------------------------------- TOTAL ENGINEERING 2134321343 21343 SIGNAL WORK LABOR ADDITIVE 234% 1889 1889 1889 SIGNAL 959 5 964 964 --------------------------------------- TOTAL SIGNAL 2848 5 2853 2853 TRACK & SURFACE WORK BALAST 2.00 CL 3121 2004 5125 5125 BILL PREP FEE900 900 900 CONTRACT ASPHALT 21000 21000 21000 ENVIRONMENTAL PERMIT 10 10 10 FOREIGN LINE FREIGHT1339 1339 1339 HOMELINE FREIGHT 900 900 900 LABOR ADDITIVE 234% 85573 85573 85573 MATL STORE EXPENSE20 20 20 OTM 3099 1044 4143 4143 RAIL 320.00 LF 10395 5580 15975 15975 RDXING 136.00 TF 3444 22136 2558025580 SALES TAX 1696 1696 1696 TRK-SURF,LIN 7204 7204 7204 WELD 13405 378 13783 13783 XTIE 100.00 EA 12685 11317 24002 24002 --------------------------------------- TOTAL TRACK & SURFACE 138926 68324 207250 207250 --------------- LABOR/MATERIAL EXPENSE 163117 68329 ---------------- RECOLLECTIBLE/UPRR EXPENSE 231446 0 -------- ESTIMATED PROJECT COST231446 THE ABOVE FIGURES ARE ESTIMATES ONLY AND SUBJECT TO FLUCTUATION. IN THE EVENT OF AN INCREASE OR DECREASE IN THE COST OR QUANTITY OF MATERIAL OR LABOR REQUIRED, UPRR WILL BILL FOR ACTUAL CONSTRUCTION COSTS AT THE CURRENT EFFECTIVE RATE. 44 5245 46 47 Public Highway At-Grade Crossing 03/01/13 Standard Form Approved, AVP-Law EXHIBIT D TO PUBLIC HIGHWAY AT GRADE CROSSING AGREEMENT Exhibit D will be Contractor’s Right of Entry Agreement (see Recitals) 1 48 UNION PACIFIC RAILROAD COMPANY CONTRACTOR'S RIGHT OF ENTRY AGREEMENT Form Approved:AVP Law03/01/2013 Folder No.: UPRR Audit No.: CONTRACTOR'S RIGHT OF ENTRY AGREEMENT _____________________________________________ THIS AGREEMENTis made and entered into as of the _____ day of _________________, 20, by and between UNION PACIFIC RAILROAD COMPANY, aDelaware corporation ("Railroad"); and (Name of Contractor) a corporation (“Contractor”). RECITALS: Contractor has been hired by ____________________________for __________________________ of the road crossing DOT ________________ atMile Posts __________on the ______________Subdivision in _______________, _______________ County, ________________, in the general location shown on the Railroad Location PrintmarkedExhibit A,attachedhereto and hereby made a part hereof, which work is the subject of an Agreementdated _________________, between the Railroadand the _________________________________. The Railroad is willing to permit the Contractor to perform the work described above at the location described above subject to the terms and conditions contained in this Agreement AGREEMENT: NOW, THEREFORE,it is mutually agreed by and between Railroad and Contractor, as follows: ARTICLE 1 -DEFINITION OF CONTRACTOR. For purposes of this Agreement, all references in this agreement to Contractor shall include Contractor's contractors, subcontractors, officers, agents and employees, and others acting under its or their authority. ARTICLE 2 -RIGHT GRANTED; PURPOSE. Railroad hereby grants to Contractor the right, during the term hereinafter stated and upon and subject to each and all of the terms, provisions and conditions herein contained, to enter upon and have ingress to and egress from the property described in the Recitals for the purpose of performing the work described in the Recitals above. The right herein granted to Contractor is limited to those portions of Railroad's property specifically described herein, or as designated by the Railroad Representative named in Article 4. Articles of Agreement Page 1of 4 49 UNION PACIFIC RAILROAD COMPANY CONTRACTOR'S RIGHT OF ENTRY AGREEMENT Form Approved:AVP Law03/01/2013 ARTICLE 3 -TERMS AND CONDITIONS CONTAINED IN EXHIBITS B, C & D. The General Terms and Conditionscontained in Exhibit B,the Insurance Requirements contained inExhibit C,andthe Minimum Safety Requirementscontained inExhibit D,each attached hereto, are hereby made a part of this Agreement. ARTICLE 4 -ALL EXPENSES TO BE BORNE BY CONTRACTOR; RAILROAD REPRESENTATIVE. A.Contractor shall bear any and all costs and expenses associated with any work performed by Contractor, or any costs or expenses incurred by Railroad relating to this Agreement. B.Contractor shall coordinate all of its work with the following Railroad representative or his or her duly authorized representative (the "Railroad Representative"): ______________________ ______________________ ______________________ C.Contractor, at its own expense, shall adequately police and supervise all work to be performed by Contractor and shall ensure that such work is performed in a safe manner as set forth in Section 7 of Exhibit B. The responsibility of Contractor for safe conduct and adequate policing and supervision of Contractor's work shall notbe lessened or otherwise affected by Railroad's approval of plans and specifications involving the work, or by Railroad's collaboration in performance of any work, or by the presence at the work site of a Railroad Representative, or by compliance by Contractor with any requests or recommendations made by Railroad Representative. ARTICLE 5 - SCHEDULE OF WORK ON A MONTHLY BASIS. The Contractor, at its expense, shall provide on a monthly basis a detailed schedule of work to the Railroad Representative named in Article 4B above. The reports shall start at the execution of this Agreement and continue until this Agreement is terminated as provided in this Agreement or until the Contractor has completed all work on Railroad’s property. ARTICLE 6 -TERM; TERMINATION. A.The grant of right herein made to Contractor shall commence on the date of this Agreement, and continue until __________________________, unless sooner terminated as herein (Expiration Date) provided, or at such time as Contractor has completed its work on Railroad's property, whichever is earlier. Contractor agrees to notify the Railroad Representative in writing when it has completed its work on Railroad's property. B.This Agreement maybe terminated by either party on ten (10) days written notice to the other party. Articles of Agreement Page 2of 4 50 UNION PACIFIC RAILROAD COMPANY CONTRACTOR'S RIGHT OF ENTRY AGREEMENT Form Approved:AVP Law03/01/2013 ARTICLE 7 -CERTIFICATE OF INSURANCE. A.Before commencing any work, Contractor will provide Railroad with the (i) insurance binders, policies, certificates and endorsements set forth in Exhibit Cof this Agreement, and (ii) the insurance endorsements obtained by each subcontractor as required under Section 12 of Exhibit Bof this Agreement. B.All insurance correspondence, binders, policies, certificates and endorsements shall be sent to: Union Pacific Railroad Company Real Estate Department 1400 Douglas Street, MS 1690 Omaha, NE 68179-1690 UPRR Folder No.: _______________ ARTICLE 8 -DISMISSAL OF CONTRACTOR'S EMPLOYEE. At the request of Railroad, Contractor shall remove from Railroad's property any employee of Contractor who fails to conform to the instructions of the Railroad Representative in connection with the work on Railroad's property, and any right of Contractor shall be suspended until such removal has occurred. Contractor shall indemnify Railroad against any claims arising from the removal of any such employee from Railroad's property. ARTICLE 9 -CROSSINGS. No additional vehicular crossings (including temporary haul roads) or pedestrian crossings over Railroad's trackage shall be installed or used by Contractor without the prior written permission of Railroad. ARTICLE 10 -CROSSINGS; COMPLIANCE WITH MUTCD AND FRA GUIDELINES. A.No additional vehicular crossings (including temporary haul roads) or pedestrian crossings over Railroad's trackage shall be installed or used by Contractor without the prior written permission of Railroad. B.Any permanent or temporary changes, including temporary traffic control, to crossings must conform to the Manual of Uniform Traffic Control Devices (MUTCD) and any applicable Federal Railroad Administration rules, regulations and guidelines, and must be reviewed by the Railroad prior to any changes being implemented. In the event the Railroad is found to be out of compliance with federal safetyregulations due to the Contractor’s modifications, negligence, or any other reason arising from the Contractor’s presence on the Railroad’s property, the Contractor agrees to assume liability for any civil penalties imposed upon the Railroad for such noncompliance. Articles of Agreement Page 3of 4 51 UNION PACIFIC RAILROAD COMPANY CONTRACTOR'S RIGHT OF ENTRY AGREEMENT Form Approved:AVP Law03/01/2013 ARTICLE 11 - EXPLOSIVES. Explosives or other highly flammable substances shall not be stored or used on Railroad's property without the prior written approval of Railroad. IN WITNESS WHEREOF, the parties hereto have duly executed this agreement in duplicate as of the date first herein written. UNION PACIFIC RAILROAD COMPANY (Federal Tax ID #94-6001323) By:______________________________________ Daniel Peters Real Estate – Public Projects __________________________________________ (Name of Contractor) By_______________________________________ Printed Name:______________________________________ Title:_____________________________________________ Articles of Agreement Page 4of 4 52 53 UNION PACIFIC RAILROAD COMPANY CONTRACTOR'S RIGHT OF ENTRY AGREEMENT Form Approved:AVP Law03/01/2013 EXHIBIT B TOCONTRACTOR'S RIGHT OF ENTRY AGREEMENT GENERAL TERMS & CONDITIONS Section 1.NOTICE OF COMMENCEMENT OF WORK - FLAGGING. A.Contractor agrees to notify the Railroad Representative at least thirty (30) working days in advance of Contractor commencing its work and at least ten (10) working days in advance of proposed performance of any work by Contractor in which any person or equipment will be within twenty-five (25) feet of any track, or will be nearenough to any track that any equipment extension (such as, but not limited to, a crane boom) will reach to within twenty-five (25) feet of any track. No work of any kind shall be performed, and no person, equipment, machinery, tool(s), material(s), vehicle(s), or thing(s) shall be located, operated, placed, or stored within twenty-five (25) feet of any of Railroad's track(s) at any time, for any reason, unless and until a Railroad flagman is provided to watch for trains. Upon receipt of such ten (10)-daynotice, the Railroad Representative will determine and inform Contractor whether a flagman need be present and whether Contractor needs to implement any special protective or safety measures. If flagging or other special protective or safety measures areperformed by Railroad, Railroad will bill Contractor for such expenses incurred by Railroad, unless Railroad and a federal, state or local governmental entity have agreed that Railroad is to bill such expenses to the federal, state or local governmental entity. If Railroad will be sending the bills to Contractor, Contractor shall pay such bills within thirty (30) days of Contractor's receipt of billing. If Railroad performs any flagging, or other special protective or safety measures are performed by Railroad, Contractor agrees that Contractor is not relieved of any of its responsibilities or liabilities set forth in this Agreement. B.The rate of pay per hour for each flagman will be the prevailing hourly rate in effect for an eight-hour day for the class of flagmen used during regularly assigned hours and overtime in accordance with Labor Agreements and Schedules in effect at the time the work is performed. In addition to the cost of such labor, a composite charge for vacation, holiday, health and welfare, supplemental sickness, Railroad Retirement and unemployment compensation, supplemental pension, Employees Liability and Property Damage and Administration will be included, computed on actual payroll. The composite charge will be the prevailing composite charge in effect at the time the work is performed. One and one-half times the current hourly rate is paid for overtime, Saturdays and Sundays, and two and one-half times current hourly rate for holidays. Wage rates are subject to change, at any time, by law or by agreement between Railroad and its employees, and may be retroactive as a result of negotiations or a ruling of an authorized governmental agency. Additional charges on labor are also subject to change. If the wage rate or additional charges are changed, Contractor (or the governmental entity, as applicable) shall pay on the basis of the new rates and charges. C.Reimbursement to Railroad will be required covering the full eight-hour day during which any flagman is furnished, unless the flagman can be assigned to other Railroad work during a portion of such day, in which event reimbursement will not be required for the portion of the day during which the flagman is engaged in other Railroad work. Reimbursement will also be required forany day not actually worked by the flagman following the flagman's assignment to work on the project for which Railroad is required to pay the flagman and which could not reasonably be avoided by Railroad by assignment of such flagman to other work , eventhough Contractor may not be working during such time. When it becomes necessary for Railroad to bulletin and assign an employee to a flagging position in compliance with union collective bargaining agreements, Contractor must provide Railroad a minimum of five (5) days notice prior to the cessation of the need for a flagman. If five (5) days notice of cessation is not given, Contractor will still be required to pay flagging charges for the five (5) day notice period required by union agreement to be given to the employee, even though flagging is not required for that period. An additional ten (10) days notice must then be given to Railroad if flagging services are needed again after such five day cessation notice has been given to Railroad. Section 2.LIMITATION AND SUBORDINATION OF RIGHTS GRANTED A.The foregoing grant of right is subject and subordinate to the prior and continuing right and obligation of the Railroad to use and maintain its entire property including the right and power of Railroad toconstruct, maintain, repair, renew, use, operate, change, modify or relocate railroad tracks, roadways, signal, communication, fiber optics, or other wirelines, pipelines and other facilities upon, along or across any or all parts of its property, all or any of which may be Exhibit B CONTRACTOR'S RIGHT OF ENTRY Page 1of 4 AGREEMENT General Terms & Conditions Form Approved:AVP Law03/01/2013 54 UNION PACIFIC RAILROAD COMPANY CONTRACTOR'S RIGHT OF ENTRY AGREEMENT Form Approved:AVP Law03/01/2013 freely done at any time or times by Railroad without liability to Contractor 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 and lessees of Railroad's property, and others) and the right of Railroad to renew and extend the same, and is made without covenant of title or for quiet enjoyment. Section 3.NO INTERFERENCE WITH OPERATIONS OF RAILROAD AND ITS TENANTS. A.Contractor shall conduct its operations so as not to interfere with the continuous and uninterrupted use and operation of the railroad tracks and property of Railroad, including without limitation, the operations of Railroad's lessees, licensees or others, unlessspecifically authorized in advance by the Railroad Representative. Nothing shall be done or permitted to be done by Contractor at any time that would in any manner impair the safety of such operations. When not in use, Contractor's machinery and materials shall be kept at least fifty (50) feet from the centerline of Railroad's nearest track, and there shall be no vehicular crossings of Railroads tracks except at existing open public crossings. B.Operations of Railroad and work performed by Railroad personnel and delays in the work to be performed by Contractor caused by such railroad operations and work are expected by Contractor, and Contractor agrees that Railroad shall have no liability to Contractor, or any other person or entity for any such delays. The Contractor shall coordinate its activities with those of Railroad and third parties so as to avoid interference with railroad operations. The safe operation of Railroad train movements and other activities by Railroad takes precedence over any work to be performed by Contractor. Section 4.LIENS. Contractor shall pay in full all persons who perform labor or provide materials for the work to be performed by Contractor. Contractor shall not create, permit or suffer any mechanic's or materialmen's liens of any kind or nature to be created or enforced against any property of Railroad for any such work performed. Contractor shall indemnify and hold harmless Railroad from and against any and all liens, claims, demands, costs or expenses of whatsoever nature in any way connected with or growing out of such work done, labor performed, or materials furnished. If Contractor fails to promptly cause any lien to be released of record, Railroad may, at its election, discharge the lien or claim of lien at Contractor's expense. Section 5.PROTECTION OF FIBER OPTIC CABLE SYSTEMS. A.Fiber optic cable systems may be buried on Railroad's property. Protection of the fiber optic cable systems is of extreme importance since any break could disrupt service to users resulting in business interruption and loss of revenue and profits. Contractor shall telephone Railroad during normal business hours (7:00 a.m. to 9:00 p.m. Central Time, Monday through Friday, except holidays) at 1-800-336-9193 (also a 24-hour, 7-day number for emergency calls) to determine if fiber optic cable is buried anywhere on Railroad's property to be used by Contractor. If it is, Contractor will telephone the telecommunications company(ies) involved, make arrangements for a cable locator and, if applicable, for relocation or other protection of the fiber optic cable. Contractor shall not commence any work until all such protection or relocation (if applicable) has been accomplished. B. In addition to other indemnity provisions inthis Agreement, Contractor shall indemnify, defend and hold Railroad harmless from and against all costs, liability and expense whatsoever (including, without limitation, attorneys' fees, court costs and expenses) arising out of any act or omission of Contractor, its agents and/or employees, that causes or contributes to (1) any damage to or destruction of any telecommunications system on Railroad's property, and/or (2) any injury to or death of any person employed by or on behalf of any telecommunicationscompany, and/or its contractor, agents and/or employees, on Railroad's property. Contractor shall not have or seek recourse against Railroad 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 Railroad's property or a customer or user of services of the fiber optic cable on Railroad's property. Exhibit B CONTRACTOR'S RIGHT OF ENTRY Page 2of 4 AGREEMENT General Terms & Conditions Form Approved:AVP Law03/01/2013 55 UNION PACIFIC RAILROAD COMPANY CONTRACTOR'S RIGHT OF ENTRY AGREEMENT Form Approved:AVP Law03/01/2013 Section 6.PERMITS - COMPLIANCE WITH LAWS. In the prosecution of the work covered by this Agreement, Contractor shall secure any and all necessary permits and shall comply with all applicable federal, state and local laws, regulations and enactments affecting the work including, without limitation, all applicable Federal Railroad Administration regulations. Section 7.SAFETY. A.Safety of personnel, property, rail operations and the public is of paramount importance in the prosecution of the work performed by Contractor. Contractor shall be responsible for initiating, maintaining and supervising all safety, operations and programs in connection with the work. Contractor shall at a minimum comply with Railroad's safety standards listed in Exhibit D, hereto attached, to ensure uniformity with the safety standards followed by Railroad's own forces. As a part of Contractor's safety responsibilities, Contractor shall notify Railroad if Contractor determines that any of Railroad's safety standards are contrary to good safety practices. Contractor shall furnish copies of Exhibit Dto each of its employees before they enter the job site. B.Without limitation of the provisions of paragraph A above, Contractor shall keep the job site free from safety and health hazards and ensure that its employees are competent and adequately trained in all safety and health aspects of the job. C.Contractor shall have proper first aid supplies available on the job site so that prompt first aid services may be provided to any person injured on the job site. Contractor shall promptly notify Railroad of any U.S. Occupational Safety and Health Administration reportable injuries. Contractor shall have a nondelegable duty to control its employees while they are on the job site or any other property of Railroad, and to be certain they do not use, be under the influence of, or have in their possession any alcoholic beverage, drug or other substance that may inhibit the safe performance of any work. D.If and when requested by Railroad, Contractor shall deliver to Railroad a copy of Contractor's safety plan for conducting the work (the "Safety Plan"). Railroad shall have the right, but not the obligation, to require Contractor to correct any deficiencies in the Safety Plan. The terms of this Agreement shall control if there are any inconsistencies between this Agreement and the Safety Plan. Section 8.INDEMNITY. A. To the extent not prohibited by applicable statute, Contractor shall indemnify, defend and hold harmless Railroad, its affiliates, and its and their officers, agents and employees (individually an “Indemnified Party” or collectively "Indemnified Parties") from and against any and all loss, damage, injury, liability, claim, demand, cost or expense (including, without limitation, attorney's, consultant's and expert's fees, and court costs), fine or penalty (collectively, "Loss") incurred by any person (including, without limitation, any Indemnified Party, Contractor, or any employee of Contractor or of any Indemnified Party) arising out of or in any manner connected with (i) any work performed by Contractor, or (ii) any act or omission of Contractor,its officers, agents or employees, or (iii) any breach of this Agreement by Contractor. B. The right to indemnity under this Section 8 shall accrue upon occurrence of the event giving rise to the Loss, and shall apply regardless of any negligence or strict liability of any Indemnified Party, except where the Loss is caused by the sole active negligence of an Indemnified Party as established by the final judgment of a court of competent jurisdiction. Thesole active negligence of any Indemnified Party shall not bar the recovery of any other Indemnified Party. C. Contractor expressly and specifically assumes potential liability under this Section 8 for claims or actions brought by Contractor's own employees. Contractor waives any immunity it may have under worker's compensation or industrial insurance acts to indemnify the Indemnified Partiesunder this Section 8. Contractor acknowledges that this waiver was mutually negotiated by the parties hereto. D. Nocourt or jury findings in any employee's suit pursuant to any worker's compensation act or theFederal Employers' Liability Act against a party to this Agreement may be relied upon or used by Contractor in any attempt to assert liability against any Indemnified Party. E. The provisions of this Section 8 shall survive the completion of any work performed by Contractor or the termination or Exhibit B CONTRACTOR'S RIGHT OF ENTRY Page 3of 4 AGREEMENT General Terms & Conditions Form Approved:AVP Law03/01/2013 56 UNION PACIFIC RAILROAD COMPANY CONTRACTOR'S RIGHT OF ENTRY AGREEMENT Form Approved:AVP Law03/01/2013 expiration of this Agreement. In no event shall this Section 8 or any other provision of this Agreement be deemed to limit any liability Contractormay have to any Indemnified Party by statute or under common law. Section 9.RESTORATION OF PROPERTY. In the event Railroad authorizes Contractor to take down any fence of Railroad or in any manner move or disturb any of the other property of Railroad in connection with the work to be performed by Contractor, then in that event Contractor shall, as soon as possible and at Contractor's sole expense, restore such fence and other property to the same condition as the same were in before such fence was taken down or such other property was moved or disturbed. Contractor shall remove all of Contractor's tools, equipment, rubbish and other materials from Railroad's property promptly upon completion of the work, restoring Railroad's property to the same state and condition as when Contractor entered thereon. Section 10.WAIVER OF DEFAULT. Waiver by Railroad of any breach or default of any condition, covenant or agreement herein contained to be kept, observed and performed by Contractor shall in no way impair the right of Railroad to avail itself of any remedy for any subsequent breach or default. Section 11.MODIFICATION - ENTIRE AGREEMENT. No modification of this Agreement shall be effective unless made in writing and signed by Contractor and Railroad. This Agreement and the exhibits attached hereto and made a part hereof constitute the entire understanding between Contractor and Railroad and cancel and supersede any prior negotiations, understandings or agreements, whether written or oral, with respect to the work to be performed by Contractor. Section 12.ASSIGNMENT - SUBCONTRACTING. Contractor shall not assign or subcontract this Agreement, or any interest therein, without the written consent of the Railroad. Contractor shall be responsible for the acts and omissions of all subcontractors. Before Contractor commences any work, the Contractor shall, except to the extent prohibited by law; (1) require each of its subcontractors to include the Contractor as "Additional Insured" in the subcontractor's Commercial General Liability policy and Business Automobile policies with respect to all liabilities arising out of the subcontractor's performance of work on behalf of the Contractor by endorsing these policies with ISO Additional Insured Endorsements CG 20 26, and CA 20 48 (or substitute forms providing equivalent coverage; (2) require each of its subcontractors to endorse their Commercial General Liability Policy with "Contractual Liability Railroads" ISO Form CG 24 17 10 01 (or a substitute form providing equivalent coverage) for the job site; and (3) require each of its subcontractors to endorse their Business Automobile Policy with "Coverage For Certain Operations In Connection With Railroads" ISO Form CA 20 70 1001 (or a substitute form providing equivalent coverage) for the job site. Exhibit B CONTRACTOR'S RIGHT OF ENTRY Page 4of 4 AGREEMENT General Terms & Conditions Form Approved:AVP Law03/01/2013 57 UNION PACIFIC RAILROAD COMPANY CONTRACTOR'S RIGHT OF ENTRY AGREEMENT Form Approved:AVP Law03/01/2013 EXHIBIT C TO CONTRACTOR'S RIGHT OF ENTRY AGREEMENT INSURANCE REQUIREMENTS Contractor shall, at its sole cost and expense, procure and maintain during the courseof the Project and until all Project work on Railroad’s property has been completed and the Contractor has removed all equipment and materials from Railroad’s property and has cleaned and restored Railroad’s property to Railroad’s satisfaction, the following insurance coverage: A.COMMERCIAL GENERAL LIABILITY INSURANCE. Commercial general liability (CGL) with a limit of not less than $5,000,000 each occurrence and an aggregate limit of not less than $10,000,000. CGLinsurance must be written on ISO occurrence form CG 00 01 12 04 (or a substitute form providing equivalent coverage). The policy must also contain the following endorsement, which must be stated on the certificate of insurance: Contractual Liability Railroads ISO form CG 24 17 10 01 (or asubstitute form providing equivalent coverage) showing “Union Pacific Railroad Company Property” as the Designated Job Site. Designated Construction Project(s) General Aggregate Limit ISO Form CG 25 03 03 97 (or a substitute form providing equivalent coverage) showing the project on the form schedule. B.BUSINESS AUTOMOBILE COVERAGE INSURANCE.Business auto coverage written on ISO form CA 000110 01 (or a substitute form providing equivalent liability coverage) with a combined single limit of not less $5,000,000 for each accidentand coverage must include liability arising out of any auto (including owned, hired and non-owned autos). The policy must contain the following endorsements, which must be stated on the certificate of insurance: Coverage For Certain Operations In Connection With Railroads ISO form CA 20 70 10 01 (or a substitute form providing equivalent coverage) showing “Union Pacific Property” as the Designated Job Site. Motor Carrier Act Endorsement - Hazardous materials clean up (MCS-90)if required by law. C.WORKERS' COMPENSATION AND EMPLOYERS' LIABILITY INSURANCE. Coverage must include but not be limited to: Contractor's statutory liability under the workers' compensation laws of the state where the work is being performed. Employers' Liability (Part B) with limits of at least $500,000 each accident, $500,000 disease policy limit $500,000 each employee. If Contractor is self-insured, evidence of state approval and excess workers compensation coverage must be provided. Coverage must include liability arising out of the U. S. Longshoremen's and Harbor Workers' Act, the Jones Act, and the Outer Continental Shelf Land Act, if applicable. The policy must contain the following endorsement, which must be stated on the certificate of insurance: Alternate Employer endorsement ISO form WC 00 03 01 A (or a substitute form providing equivalent coverage) showing Railroad in the schedule as the alternate employer (or a substitute form providing equivalent coverage). D.RAILROAD PROTECTIVE LIABILITY INSURANCE. Contractor must maintain Railroad Protective Liability insurance written on ISO occurrence form CG 00 35 12 04 (or a substitute form providing equivalent coverage)on behalf of Railroad as named insured, with a limit of not less than $2,000,000 per occurrence and an aggregate of $6,000,000. A binder stating the policy is in place must be submitted to Railroad before the work may be commenced and until the original policy is forwarded to Railroad. E.UMBRELLA OR EXCESS INSURANCE. If Contractor utilizes umbrella or excess policies, these policies must “follow form” and afford no less coverage than the primary policy. Exhibit C CONTRACTOR'S RIGHT OF ENTRY Page 1of 2 AGREEMENT Insurance Requirements Form Approved:AVP Law03/01/2013 58 UNION PACIFIC RAILROAD COMPANY CONTRACTOR'S RIGHT OF ENTRY AGREEMENT Form Approved:AVP Law03/01/2013 F.POLLUTION LIABILITY INSURANCE.Pollution liability coverage must be written on ISO form Pollution Liability Coverage Form Designated Sites CG 00 39 12 04 (or a substitute form providing equivalent liability coverage), with limits of at least $5,000,000 per occurrence and an aggregate limit of $10,000,000. If the scope of work as defined in this Agreement includes the disposal of any hazardous or non-hazardous materials from the job site, Contractor must furnish to Railroad evidence of pollution legal liability insurance maintained by the disposal site operator for losses arising from the insured facility accepting the materials, with coverage in minimum amounts of $1,000,000 per loss, and an annual aggregate of $2,000,000. OTHER REQUIREMENTS G.All policy(ies) required above (except worker’s compensation and employers liability) must include Railroad as “Additional Insured”using ISO Additional Insured Endorsements CG 20 26, and CA 20 48 (or substitute forms providing equivalent coverage). The coverage provided to Railroad as additional insured shall, to the extent provided under ISO Additional Insured Endorsement CG 20 26, and CA 20 48 provide coverage for Railroad’s negligence whether sole or partial, active or passive, and shall not be limited by Contractor's liability under the indemnity provisions of this Agreement. H.Punitive damages exclusion, if any, must be deleted (and the deletion indicated on the certificate of insurance), unless the law governing this Agreement prohibits all punitive damages that might arise under this Agreement. I.Contractor waives all rights of recovery, and its insurers also waive all rights of subrogation of damages against Railroad and its agents, officers, directors and employees. This waivermust be stated on the certificate of insurance. J.Prior to commencing the work, Contractor shall furnishRailroad with a certificate(s) of insurance, executed by a duly authorized representative of each insurer, showing compliance with the insurance requirements in this Agreement. K.All insurance policies must be written by a reputable insurance company acceptable to Railroad or with a current Best's Insurance Guide Rating of A- and Class VII or better, and authorized to do business in the state where the work is being performed. L.The fact that insurance is obtained by Contractor or by Railroad on behalf of Contractor will not be deemed to release or diminish the liability of Contractor, including, without limitation, liability under the indemnity provisions of this Agreement. Damages recoverable by Railroad from Contractor or any third party will not be limited by the amount of the required insurance coverage. Exhibit C CONTRACTOR'S RIGHT OF ENTRY Page 2of 2 AGREEMENT Insurance Requirements Form Approved:AVP Law03/01/2013 59 UNION PACIFIC RAILROAD COMPANY CONTRACTOR'S RIGHT OF ENTRY AGREEMENT Form Approved:AVP Law03/01/2013 EXHIBIT D TOCONTRACTOR'S RIGHT OF ENTRY AGREEMENT MINIMUM SAFETY REQUIREMENTS The term "employees" as used herein refer to all employees of Contractor as well as all employees of any subcontractor or agent of Contractor. I.CLOTHING A.All employees of Contractor will be suitably dressed to perform their duties safely and in a manner that will not interfere with their vision, hearing, or free use of their hands or feet. Specifically, Contractor’s employees must wear: i.Waist-length shirts with sleeves. ii.Trousers that cover the entire leg. If flare-legged trousers are worn, the trouser bottoms must be tied to prevent catching. iii.Footwear that covers their ankles and has a defined heel. Employees working on bridges are required to wear safety-toed footwear that conforms to the American National Standards Institute (ANSI) and FRA footwear requirements. B.Employees shall not wear boots (other than work boots), sandals, canvas-type shoes, or other shoes that have thin soles or heels that are higher than normal. C.Employees must not wear loose or ragged clothing, neckties, finger rings, or other loose jewelry while operating or working on machinery. II.PERSONAL PROTECTIVE EQUIPMENT Contractor shall require its employees to wear personal protective equipment as specified by Railroad rules, regulations, or recommended or requested by the Railroad Representative. i.Hard hat that meets the American National Standard (ANSI) Z89.1 –latest revision. Hard hats should be affixed with Contractor’s company logo or name. ii.Eye protection that meets American National Standard (ANSI) for occupational and educational eye and face protection, Z87.1 – latest revision. Additional eye protection must be provided to meet specific job situations such as welding, grinding, etc. iii.Hearing protection, which affords enough attenuation to give protection from noise levels that will be occurring on the job site. Hearing protection, in the form of plugs or muffs, must be worn when employees are within: 100 feet of a locomotive or roadway/work equipment 15feet of power operated tools 150 feet of jet blowers or pile drivers 150 feet of retarders in use (when within 10 feet, employees must wear dual ear protection – plugs and muffs) iv.Other types of personal protective equipment, such as respirators, fall protection equipment, and face shields, must be worn as recommended or requested by the Railroad Representative. III.ON TRACK SAFETY Contractor is responsible for compliance with the Federal Railroad Administration’s Roadway Worker Protection regulations – 49CFR214, Subpart C and Railroad's On-Track Safety rules. Under 49CFR214, Subpart C, railroad contractors are responsible for the training of their employees on such regulations. In addition to the instructions contained in Roadway Worker Protectionregulations, all employees must: i.Maintain a distance of twenty-five (25) feet to any track unless the Railroad Representative is present to authorize movements. Exhibit D CONTRACTOR'S RIGHT OF ENTRY Page 1of 2 AGREEMENT Minimum Safety Requirements Form Approved:AVP Law03/01/2013 60 UNION PACIFIC RAILROAD COMPANY CONTRACTOR'S RIGHT OF ENTRY AGREEMENT Form Approved:AVP Law03/01/2013 ii.Wear an orange, reflectorized workwear approved by the Railroad Representative. iii.Participate in a job briefing that will specify the type of On-Track Safety for the type of work being performed. Contractor must take special note of limits of track authority, which tracks may or may not be fouled, and clearing the track. Contractor will also receive special instructions relating to the work zone around machines and minimum distances between machines while working or traveling. IV.EQUIPMENT A.It is the responsibility of Contractor to ensure that all equipment is in a safe condition to operate. If, in the opinion of the Railroad Representative, any of Contractor’s equipment is unsafe for use, Contractor shall remove such equipment from Railroad’s property. In addition, Contractor must ensure that the operators of all equipment are properly trained and competent in the safe operation of the equipment. In addition, operators must be: i.Familiar and comply with Railroad’s rules on lockout/tagout of equipment. ii.Trained in and comply with the applicable operating rules if operating any hy-rail equipment on-track. iii.Trained in and comply with the applicable air brake rules if operating any equipment that moves rail cars or any other railbound equipment. B.All self-propelled equipment must be equipped with a first-aid kit, fire extinguisher, and audible back-up warning device. C.Unless otherwise authorized by the Railroad Representative, all equipment must be parked a minimum of twenty-five (25) feet from any track. Before leaving any equipment unattended, the operator must stop the engine and properly secure the equipment against movement. D.Cranes must be equipped with three orange cones that will be used to mark the working area of the crane and the minimum clearances to overhead powerlines. V.GENERAL SAFETY REQUIREMENTS A.Contractor shall ensure that all waste is properly disposed of in accordance with applicable federal and state regulations. B.Contractor shall ensure that all employees participate in and comply with a job briefing conducted by the Railroad Representative, if applicable.During this briefing, the Railroad Representative will specify safe work procedures, (including On-Track Safety) and the potential hazards of the job. If any employee has any questions or concerns about the work, the employee must voice them during the job briefing. Additional job briefings will be conducted during the work as conditions, work procedures, or personnel change. C.All track work performed by Contractor meets the minimum safety requirements established by the Federal Railroad Administration’s Track Safety Standards 49CFR213. D.All employees comply with the following safety procedures when working around any railroad track: i.Always be on the alert for moving equipment. Employees must always expect movement on any track, at any time, in either direction. ii.Do not step or walk on the top of the rail, frog, switches, guard rails, or other track components. iii.In passing around the ends of standing cars, engines, roadway machines or work equipment, leave at least 20 feet between yourself and the end of the equipment. Do not go between pieces of equipment of the opening is less than one car length (50 feet). iv.Avoid walking or standing on a track unless so authorized by the employee in charge. v.Before stepping over or crossing tracks, look in both directions first. vi.Do not sit on, lie under, or cross between cars except as required in the performance of your duties and only when track and equipment have been protected against movement. E.All employees must comply with all federal and state regulationsconcerning workplace safety. Exhibit D CONTRACTOR'S RIGHT OF ENTRY Page 2of 2 AGREEMENT Minimum Safety Requirements Form Approved:AVP Law03/01/2013 61 Agenda Item April 22, 2019 TO:Honorable Mayor and City Council through City Administrator FROM:Eric Liljequist, Public Works Director SUBJECT:Intergovernmental Agreement – Hardcastle Avenue Realignment and Railroad Grade Crossing Alteration, Misc. Contracts and Agreements No.33267 (Goal Number 4) RECOMMENDATION: Authorize the City Administrator to execute anIntergovernmental Agreement (IGA) between the State of Oregon and the City of Woodburn pertaining to a $200,000 contribution from Oregon Department ofTransportationRail Division for the Hardcastle Avenue Realignment at Railroad project. : BACKGROUND During preliminary design efforts for the Hardcastle Avenue Realignment at Railroad project, the Oregon Department of Transportation Rail Division offered to contribute $200,000 to the City of Woodburn towards the purchase and installation of the active train warning devices, which are estimated at $530,000. DISCUSSION: The project design is now substantially completed and the project is anticipated to be advertised for public bids in the coming weeks, depending on UPRR’s track and signal crew availability. To secure the $200,000 contribution from the Oregon Department of Transportation Rail Division, the IGA must be signed by the City of Woodburn. FINANCIAL IMPACT: Execution of the Oregon Department of Transportation Rail will provide a $200,000 contribution to the Hardcastle Avenue Realignment at Railroad project, lessening the financial burden on the Street Fund and Street SDC Funds. Agenda Item Review:City Administrator ___x___City Attorney ___x___Finance __x___ 62 63 64 65 66 67 68 Agenda Item April22, 2019 To: Honorable Mayor and City Council through City Administrator From:Chris Kerr,Community Development Director Colin Cortes, AICP, CNU-A, Senior Planner Subject:Call-Up Briefing: Planning Commission Denial of a Variance Application for Do It Best Corp. at 333 S. Woodland Ave (VAR 2018-04) RECOMMENDATION: Staff recommends noactionand briefs the Council on this item pursuant to Woodburn Development Ordinance (WDO) Section 4.02.02.The Council may call up this item for review if desired and, by majority vote, initiate a review of this decision. BACKGROUND: The Woodburn Planning Commission held a public hearing on April 11, 2019 and unanimously denied the Variance (Type III) as recommended by staff. The applicant failed to attend, and no attending parties testified either for or in opposition to the proposal. Therequest was to vary from the fencing height and chain-link coating standards of Woodburn Development Ordinance (WDO) 2.06.02.C.1.& D.2. on Tax Lot 052W11 00101 in the Light Industrial (IL) zoning district. Specifically, the applicant requested installation of 7-foot high uncoated chain link fencing within 20 feet (ft) of the S. Woodland Avenue right-of-way (ROW) instead of 6-foot high coated chain link fencing within 20 ft of the ROW. 69 Agenda Item April22, 2019 To: Honorable Mayor and City Council through City Administrator From:Chris Kerr,AICP, Community Development Director Colin Cortes, AICP, CNU-A, Senior Planner Subject:Call-Up Briefing: Planning Commission Approval of a Conditional Use Application for Tienda Mexicana Monte Alban at 425 & 445 N. First St (CU 2019-01) RECOMMENDATION: Staff recommends noactionand briefs the Council on this item pursuant to Woodburn Development Ordinance (WDO) Section 4.02.02.The Council may call up this item for review if desired and, by majority vote, initiate a review of this decision. BACKGROUND: The Planning Commission held a public hearing on April11, 2019and unanimously approved the conditional use (Type III) with the conditions recommended by staffand with additional Condition C0 that resulted from the Commission motion of approval. One attending party, Pamela Freeman of La Caseta de Woodburn at 479 N. Front Street, testified as neutral regarding the proposal. The request was for “pawn, check cashing, payday loan and cash transfer” pursuant to Woodburn Development Ordinance (WDO) Table 2.03A, B18, and the conditional use criteria of 5.03.01for Tax Lot 051W18BA00300 in the Downtown Development and Conservation (DDC) zone. Condition C0 omits “pawn” from the group of approved uses for the site. The site near the north/northwest corner of N. First and W. Hayes Streets in the historic downtown developed in 1949 and remains occupied by the one-story commercial retail building. The proposal is about land use only; no redevelopment or site plan is relevant. The subject property contains twovacantcommercial tenant spaces, 425 & 445 N. First Street, of which the applicant proposesthe conditional use in only one. Because conditional use approval is tied to property and not a specific business, the Commission’s final decision applies to the subject property in its entirety. 70