Res 1616 - Lease Agmt Union Pac
COUNCIL BILL NO. 2290
RESOLUTION NO. 1616
A RESOLUTION ENTERING INTO A SITE LEASE AGREEMENT WITH UNION
PACIFIC RAILROAD COMPANY FOR SPACE ON THE CITY WATER TOWER AND
AUTHORIZING THE MAYOR TO SIGN SUCH AGREEMENT.
WHEREAS, the Union Pacific Railroad Company has requested that the City allow the
placement of antennas on the City water tower to allow communication with trains utilizing
Union Pacific trackage near the City of W oodbum, and
WHEREAS, the Union Pacific Railroad Company has agreed to lease to the City, for
highway purposes, a portion of railroad right-of-way on Front Street which is equal to the value
of the water lower lease; and
WHEREAS, the City has developed a site lease agreement with the Union Pacific
Railroad Company that outlines responsibilities for water tower usage and requires that separate
lease of premises for highway purposes document be executed by the parties for the water tower
lease to be effective; and
WHEREAS, the City has determined that it is in the best interests of the City and proper
to lease space on the water tower structures; NOW, THEREFORE,
Section 1. That the City of Woodburn enter into an agreement, which is affixed as
Attachment "A" and by this reference incorporated herein, with the Union Pacific Railroad
Company for use of the city water tower for antennas.
Section 2. That the Mayor of the City of Woodburn is authorized to sign said agreement
on behalf of the City.
Approved as to formm.~ ~
City Attorney
~b
Zoo \
Passed by the Council
Submitted to the Mayor
Approved by the Mayor
Filed in the Office of the Recorder
Date
Approved: ~o~
ichard Jennin , May
February 12, 2001
February
February
February
11, ?OOl
13, 2001
13, 2001
Page 1 - COUNCIL BILL NO. 2290
RESOLUTION NO. 1616
Attest: /JJ~~ c:=JJ-
M~rrT~~r .
City of Woodburn, OR
ATTACHMENT
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SITE LEASE AGREEMENT
THIS SITE LEASE AGREEMENT ("Lease") is entered into this _ day of
2001, between CITY OF WOODBURN, a municipal corporation ("Landlord") and UNION
PACIFIC RAILROAD COMPANY, a Delaware corporation ("Tenant").
1. Premises. Subject to the following terms and conditions, Landlord leases to
Tenant exclusive use of a portion ofthe real property (the "Property") described in the attached
Exhibit A. Tenant's use of the Property shall be limited to that portion of the Property together
with easements for access and utilities, described and depicted in attached Exhibits B
(collectively referred to hereinafter as the "Premises").
2. Term. The term of the Lease shall be for twenty years, commencing on the first
day of the month following the execution date of this Lease (the "Commencement Date"), and
terminating at midnight on the last day of the month in which the twentieth annual anniversary
of the Commencement Date shall have occurred.
3. Permitted Use. The Premises may be used exclusively by Tenant only for
permitted uses, which are the transmission and reception of radio communication signals for
railroad operations and for the construction, operation, maintenance, and repair of antenna
facilities: antenna pole, antennas, coax, electronic equipment and equipment cabinet(s) or
vault(s) and related improvements and/or to replace antennas (with antennas of equal or smaller
size) or electronics within equipment cabinets or vaults.
Tenant shall obtain, at Tenant's expense, all licenses and permits required for
Tenant's use of the Premises from all applicable government and/or regulatory entities (the
"Governmental Approvals") and may, prior to the Commencement Date obtain a title report,
perform surveys, soil tests, and other engineering procedures on, under and over the Property,
necessary to determine that Tenant's use ofthe Premises will be compatible with Tenant's
engineering specifications, system design, operations and Governmental Approvals. Landlord
agrees to reasonably cooperate with Tenant (at no cost to Landlord), where required, to perform
such procedures or obtain Governmental Approvals.
4. Consideration. As reasonable consideration for this Lease, Tenant agrees to
lease to Landlord, for highway purposes, the westerly five feet of Union Pacific Railroad
Company's Brooklyn Subdivision right-of-way in Woodburn, Marion County, Oregon, as
described and depicted in Exhibit C attached hereto. The lease of these premises for highway
purposes shall be memorialized by the parties in a separate Lease of Premises for Highway
Purposes document which will be executed in a form acceptable to both parties by May 1, 2001.
If the Lease of Premises for Highway Purposes is not executed by both parties by May 1, 2001,
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ATTAC~ENT A
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this Lease is null and void.
5. Interference. Tenant shall not use the Premises in any way which interferes with
the existing use of the Property by Landlord, or with any use by another tenant which use existed
at the time that this Lease was executed (subject to Tenant's rights under this Lease, including
non-interference). Tenant has informed itself of Landlord's use of the Property. If it is
determined that there is identifiable interference between Tenant's electronic equipment and the
electronic equipment already permitted on the Property by Landlord for which Tenant is
responsible under this Lease, Tenant shall be solely responsible for the timely resolution of all
interference concerns that are directly attributable to Tenant's use. In the event that Tenant is
unable to satisfactorily resolve all interference concerns which are Tenant's responsibility under
this Lease, Tenant may be required to terminate all operations immediately. If, after the first
five years of this Lease, it is deemed that Landlord has need of that portion of the Property
occupied by Tenant for expansion of Landlord's existing use, Landlord will seek to relocate
Tenant on the Property if possible. Such relocation, ifrequired, shall be at Tenant's sole cost
and expense.
Landlord shall not permit use by others of Landlord's property adjoining the
Premises which would unreasonably interfere with, or disrupt, Tenant's use of the Premises.
6. Improvements: Utilities: Access.
a. Tenant shall have the right, at its expense, to erect and maintain on the Premises
antenna facilities: antenna pole, antennas, coax, and electronics and equipment cabinet(s) or
vault(s). Landlord's prior consent to the plans and specifications for improvements shall be
required.
Tenant shall cause all construction to occur lien-free and in compliance with all
applicable laws and ordinances. The Antenna Facilities shall remain the exclusive property of
Tenant. Tenant shall remove the Antenna Facilities upon termination or expiration of this Lease
and shall return the Premises to approximate original condition except ordinary wear and tear
and be liable for any damage caused by such removal.
b. Tenant shall, at Tenant's expense, keep and maintain the Premises and
improvements now or hereafter located thereon in commercially reasonable condition and repair
during the term of this Lease.
c. Tenant shall separately meter and pay any additional utilities charges due
to Tenant's use. Tenant shall have the right to install utilities, at Tenant's expense, and to
improve the present utilities on the Premises. Landlord hereby grants an easement to
permanently place any utilities on or to bring utilities across the Property in order to service the
Page 2 - SITE LEASE AGREEMENT
ATTACHMENT A
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Premises and the Antenna Facilities. Utilities shall be limited to the location shown on the
attached Exhibit B-1 and be limited to power and telephone utilities.
d. As partial consideration for rent paid under this Lease, Landlord hereby
grants Tenant an easement ("Easement") for ingress, egress and access (including access as
described in paragraph I) to the Premises adequate to service the Premises and the Antenna
Facilities at all times during the term of this Lease. Upon notice, Landlord shall have the right,
at Landlord's sole expense, to relocate the Easement to Tenant, provided such new location shall
not materially interfere with Tenant's operations. Any Easement provided hereunder shall have
the same term as this Lease.
e. Tenant shall have 24-hour-a-day, 7-day-a-week access to Premises at all
times during the term of this Lease, except during an emergency. For the purpose of this Lease,
an "emergency" is defined as any man-made or natural event or circumstance causing or
threatening loss oflife, injury to person or property, human suffering or financial loss, and
includes, but is not limited to, fire, explosion, flood, severe weather, drought, earthquake,
volcanic activity, spills or releases of oil or hazardous materials, disease, blight, infestation, civil
disturbance, riot, sabotage and war.
7. Termination. Except as otherwise provided herein, this Lease may be terminated,
without any penalty or further liability as follows:
a. Upon 10 days' written notice by Landlord if Tenant fails to cure a default
for payment of amounts due under this Lease within that 10-day period;
b. If the Lease of Premises for Highway Purposes referenced in Section 4 of
this Lease is terminated, then this Lease shall be immediately terminated.
c. Immediately upon written notice if the Premises or Property are destroyed
or damaged so as in Tenant's reasonable judgment to substantially and adversely affect the
effective use of the Premises.
8. Taxes. Tenant shall pay any personal property taxes assessed on, or any portion
of such taxes attributable to, the Antenna Facilities. Landlord shall pay when due all real
property taxes and all other fees and assessments attributable to the Premises. However, Tenant
shall pay, as additional Rent, any increase in real property taxes levied against the Premises
(excluding any additional taxes that relate to the period prior to the Commencement Date, i.e.
roll back taxes) which is directly attributable to Tenant's use of the Premises, and Landlord
agrees to furnish proof of such increase to Tenant.
9. Indemnification. Tenant shall defend, indemnify and hold harmless Landlord, its
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ATTACHMENT A
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DUPLlCA TE ORIGINAL
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officers, agents and employees, from any liability, loss or damage Landlord may suffer
(including any reasonable attorney's fees and expenses) as a result of claims, demands, actions,
suits, costs or damages against Landlord of any kind whatsoever in connection with or arising
out of(1) any violation oflaw, ordinance or covenant or condition of this Lease by Tenant, its
agents, employees, invitees or visitors or (2) any injury or damage occurring to any person or to
property of any kind belonging to any person while on or in any way connected with any portion
of the Premises during the term of this Lease which results from or is caused by Tenant's use of
the Premises, except for any loss or damage caused to Tenant or others or to property of
Landlord, Tenant, or any other person as a direct result of the negligence or wilful acts of
Landlord or its employees. Tenant shall give Landlord prompt notice in case of casualty or
accidents on the Premises. Tenant, as a material part of the consideration to Landlord, hereby
assumes all risk of damage to property or injury to persons in, upon or about the Premises from
any cause other that Landlord's negligence or willful acts, and Tenant waives all claims in
respect thereof against Landlord.
10. Insurance. Tenant shall maintain public liability and property damage insurance
including automobile liability insurance and a fire legal liability endorsement that protects
Tenant and Landlord and its officers, agents and employees from any and all risks, claims,
demands, actions and suits for damage to property including, without limitation, cracking or
breaking of glass, or personal injury, including death, arising directly or indirectly from Tenant's
activities or any condition of the Premises. The insurance shall provide coverage for not less
than $200,000 for personal injury to each person, $500,000 for each occurrence, and $500,000
for each occurrence involving property damages; or a single limit policy of not less than
$500,000 covering all claims per occurrence. The limits of the insurance shall be subject to
statutory changes as to maximum limits of liability imposed on municipalities of the State of
Oregon during the terms of this Lease. The insurance shall be without prejudice to coverage
otherwise existing and shall list as additional insureds Landlord and its officers, agents and
employees. Notwithstanding the listing of additional insureds, the insurance shall protect each
insured in the same manner as though a separate policy had been issued to each, but nothing
herein shall operate to increase the insurer's liability as set forth elsewhere in the policy beyond
the amount or amounts for which the insurer would have been liable if only one person or
interest had been listed as insured. The insurance shall provide that the insurance shall not
terminate or be canceled without thirty (30) days written notice first being given to the City
Recorder. Tenant agrees to maintain continuous, uninterrupted coverage for the duration of the
Lease. If the insurance is canceled or terminated prior to termination of the Lease, Tenant shall
provide a new policy with the same terms. Tenant shall maintain on file with the City Recorder
a certificate of insurance certifying the coverage required by this section. Failure to maintain
liability insurance shall be cause for immediate termination of this Lease by Landlord. Landlord
shall have the right to increase the limits of insurance coverage required by this Lease during the
Lease term in order to match any statutory changes as to the maximum limits of liability on
Oregon municipalities. In the event Landlord determines that the insurance limits should be
Page 4 - SITE LEASE AGREEMENT
ATTACHMENT A
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DUPLlCA TE ORIGINAL
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increased on this basis, Landlord shall provide notice to Tenant of such determination and
Tenant shall promptly increase the coverage amounts to comply with the new limits and provide
Landlord an updated certificate. Under no circumstances shall Landlord be responsible for or
provide insurance to cover loss or damage of Tenant's equipment or personal property. Tenant
shall have the right to self-insure the above-required coverages.
11. Notices. All notice, requests, demands and other communications hereunder
shall be in writing and shall be deemed given if personally delivered or mailed, certified mail,
return receipt requested, or sent by overnight carrier to the following addresses:
If to Landlord, to:
City Administrator. City of Woodburn
270 Montgomery Street
Woodburn. Oregon 97071
If to Tenant, to:
Union Pacific Railroad Cor:poration
Communications Department
PF003
1416 Dodge Street
Omaha. NE 68179
12. Ouiet Enjoyment. Landlord warrants that it is in lawful possession of the leased
Premises and has the right to lease them. Notwithstanding other provisions in this Lease to the
contrary, Landlord will defend Tenant's right to quiet enjoyment of the leased premises from the
lawful claims of all persons during the lease term and any renewal terms.
13. Assignment. Tenant may not assign this lease without first receiving Landlord's
written consent, which consent shall not be unreasonably withheld.
14. Hazardous Waste. Landlord represents that it has no knowledge of any substance,
chemical or waste (collectively, "substance") on the Property that is identified as hazardous,
toxic or dangerous in any applicable federal, state or local law or regulation. Tenant shall not
introduce or use any such substance on the Property in violation of any applicable law. Landlord
will be solely responsible for and will defend, indemnify, and hold Tenant, its agents and
employees harmless from and against any and all direct claims, costs, and liabilities, including
reasonable attorneys' fees and costs, arising out of or in connection with the removal, cleanup or
restoration of the Property with respect to substances from any and all sources other than those
substances introduced to the City by Tenant. The obligations of this Section 14 shall survive the
expiration or other termination of this Lease.
Page 5 - SITE LEASE AGREEMENT
ATTACHMENT --Li.-
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DUPLlCA TE ORIGINAL
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15. Miscellaneous.
a. The prevailing party in any litigation arising hereunder shall be entitled to
its reasonable attorney fees and court costs, including appeals, if any.
b. This Lease constitutes the entire agreement and understanding of the
parties, and supersedes all offers, negotiations and other agreements. There are no
representations or understandings of any kind not set forth herein. Any amendments to this
Lease must be in writing and executed by both parties.
c. This Lease shall be construed in accordance with the laws of the State of
Oregon.
d If any term of this Lease if found to be invalid, such invalidity shall not
affect the remaining terms of this Lease, which shall continue in full force and effect. The
parties intend that the provisions of this Lease be enforced to the fullest extent permitted by
applicable law. Accordingly, the parties shall agree that if any provisions are deemed not
enforceable, they shall be deemed modified to the extent necessary to make them affordable.
e. This Lease may be executed in any number of counterparts, each of which
shall be deemed an original, but all of which together shall constitute a single instrument.
Union Pacific Railroad Company.
TENANT: Union Pacific Railroad Company
BY:
ITS:
STATE OF )
) ss.
County of )
On this _ day of ,2001, before me, a Notary Public in and for said
County and State, personally appeared , who is the
, of Union Pacific Railroad Company, a Delaware corporation, and
who is personally known to me (or proved to me on the basis of satisfactory evidence) to be the
person whose name is subscribed to in the within instrument, and acknowledged to me that
he/she executed the same in his/her authorized capacity, and that by his/her signature on the
instrument, the person or the entity upon behalf of which the person action, executed the
instrument.
Page 6 - SITE LEASE AGREEMENT
ATTACHMENT~
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DUPLlCA TE ORIGINAL
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Notary Public in and for said State
My Commission Expires:
LANDLORD: City of Woodburn, Oregon
Richard Jennings, Mayor
City of Woodburn
STATE OF OREGON )
) ss.
County of Marion )
The foregoing instrument was acknowledged before me this _ day of
by Richard Jennings, Mayor of the City of Woodburn, a Municipal Corporation of the State of
Oregon, on behalf of the City of Woodburn.
Notary Public for Oregon
My Commission Expires:
ATTEST:
Mary Tenant, City Recorder
Page 7 - SITE LEASE AGREEMENT
ATTACHMENT --4-=
Page.-fL. of
EXHIBIT A
To the Site Lease Agreement between the City of Woodburn, as landlord, and Union
Pacific Railroad Company, as tenant.
Legal Description
The Property is legally described as follows:
Parcel No.5, lots 1, 2, 3, & 4, Block 6, Woodburn Packing Co. Addition
with exceptions as described in Volume 125, Page 369, Parcel No.6,
Volume 320, Page 219, Beginning on the east boundary of the right of way
of the SPRR where the north boundary of the county road leading from
Woodburn to the town of Monitor, in Marion County, Oregon, crosses the
said railroad, said county road being also known as Cleveland Street, in
Woodburn, Oregon, running thence northeasterly along the east boundary of
the SPRR to the lands of UG Dunn, thence on the south boundary of said
Dunn's land 100' to the southea~ corner of said lands, thence along the
west boundary of the Woodburn packing Company's addition to the town of
Woodburn same being in a southwesterly direction and parallel to the main
line of the SPRR to the lands of the SPAR thence in a southvvesterly
direction along' the grounds of the SPRR to the'north boundary of the a~ove
mentioned street or road, thence to the place of the beginning.
ATTACHMENT A
Page -3- of J 0
EXHIBIT B
To the Site Lease Agreement between the City of Woodburn, as landlord, and Union
Pacific Railroad Company, as tenant.
Access Easement
Parcel No.5, lots 1, 2, 3, & 4, Block 6, Woodburn Packing Co. Addition with exceptions as
described in Volume 125, Page 369, Parcel No.6, Volume 320, Page 219, Beginning on the
east boundary of the right of way of the SPRR where the north boundary of the county road
leading from Woodburn to the town of Monitor, in Marion County, Oregon, crosses the said
railroad, said county road being also known as Oeveland Street, in Woodburn, Oregon.
running thence northeasterly along the east boundary of the SPRR to the lands of UG Dunn,
thence on the south boundary of said Dunn's land 100' to the southeast corner of said
lands, thence along the west boundary of the Woodburn Packing Company's addition to the
town of Woodburn same being in a southwesterly direction and parallel to the main line of
the SPRR to the lands of the SPRR thence in a southwesterly direction along the grounds of
the SPRR to the north boundary of the above mentioned street or road, thence to the place
of the beginning.
2. Utility Easement.
Parcel No.5, lots 1, 2, 3, & 4, Block 6, Woodburn Packing Co. Addition with exceptions as
described in Volume 125, Page 369, Parcel No.6, Volume 320, Page 219, Beginning on the
east boundary of the right of way of the SPRR where the north boundary of the county road
leading from Woodburn to the town of Monitor, in Marion County, Oregon, crosses the said
railroao. said CQunty road being also known as Oeveland Street. in Woodburn. Oregon,
running thence northeasterly along the east boundary of the SPRR to the lands of UG Dunn,
thence on the south boundary of said Dunn~s land 100' to the southeast corner of said
lands, thence along the west boundary of the Woodburn Packing Company's addition to the
town of Woodburn same being in a southwesterly direction and parallel to the main line of
the SPRR to the lands of the SPRR thence in a southwesterly direction along the grounds of
the SPRR to the north boundary of the above mentioned street or road, thence to the place
of the beginning.
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