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Res 1532 - Union Pac Fiber Opti - COUNCIL BILL NO. 1955 RESOLUTION NO. 1532 A RESOLUTION ENTERING INTO A WIRELlNE CROSSING AGREEMENT WITH UNION PACIFIC RAILROAD COMPANY TO ALLOW FIBER OPTIC CABLE CROSSING AT MILEPOST 735.070 AND AUTHORIZING THE MAYOR TO SIGN SAID AGREEMENT. WHEREAS, to connect the Public Works Shop facility to City Hall with fiber optic cable for network and telephone connection to city systems a wireline crossing of the Union Pacific railroad tracks must be made, and WHEREAS, the city requested that Union Pacific allow the city to make a fiber optic wireline crossing of Union Pacific railroad tracks at milepost 735.070, and WHEREAS, Union Pacific has approved the proposed crossing and has provided a wireline crossing agreement to allow requested fiber optic wireline crossing; NOW THEREFORE THE CITY OF WOODBURN RESOLVES AS FOLLOWS: Section 1. That the city enter into a wireline crossing agreement, which is affixed as Attachment 11 A 11 and by this reference incorporated herein, with the Union Pacific Railroad Company to allow a fiber optic cable crossing at milepost 735.070. Section 2. That the Mayor is authorized to sign said agreement on behalf of the city. Approved as to for~~ City Attorney :5-1(, -crt] Passed by the Council March 22, 1999 Submitted to the Mayor Approved by the Mayor Filed in the Office of the Recorder ATTEST: fY\ -r~- Ma~nnant, Recorder City of Woodburn, Oregon March 23, 1999 March 23, 1999 Marr.h /1 r 1 ggg Page 1 - COUNCIL BILL NO. 1955 RESOLUTION NO. 1532 .....~.._._..__....,___.,_,.O-<-..........,_"'""'_.__.M_.._~,..,,~_'"..,_.___..____...............,,;._ - WLX.DOC 940204 Form Approved, A VP-Law Folder No: 00823-91 WIRE LINE CROSSING AGREEMENT Mile Post: 735.000, Brooklyn Subdivision Location: Woodburn, Marion County, Oregon THIS AGREEMENT is made and entered into as of March 8, 1999, by and between UNION PACIFIC RAILROAD COMPANY, a Delaware corporation, (hereinafter the "Licensor") and CITY OF WOODBURN, an Oregon municipal corporation, to be addressed at 270 Montgomery Street, Woodburn, Oregon 97071 (hereinafter the "Licensee"). IT IS MUTUALLY AGREED BY AND BETWEEN THE PARTIES HERETO AS FOLLOWS: Article I. LICENSE FEE Upon execution of this Agreement, the Licensee shall pay to the Licensor a one-time license fee of TWO THOUSAND TWO HUNDRED SIXTY DOLLARS ($2,260.00). Article II. ADMINISTRATIVE HANDLING CHARGE The Licensee agrees to pay to the Licensor an administrative handling charge in the amount of FIVE HUNDRED DOLLARS ($500.00) for clerical, administrative and handling expense in connection with processing this Agreement. Article III. LICENSOR GRANTS RIGHT. In consideration of the License Fee to be paid by the Licensee and in further consideration of the covenants and agreements herein contained to be by the Licensee kept, observed and performed, the Licensor hereby grants to the Licensee the right to construct and thereafter, during the term hereof, to maintain and operate one overhead fiber optic wire line crossing only (hereinafter the "Wireline") in the location shown and in conformity with the dimensions and specifications indicated on the attached print dated March 2, 1999, marked Exhibit "A". Under no circumstances shall Licensee modify the use of the Wireline for a purpose other than the above- mentioned, and said Wireline shall not be used for any other use, whether such use is currently technologically possible, or whether such use may come into existence during the life of this Agreement. ,..~.. . ----y--..._._.,_....~-._--~_."._... _.- ~"T Article IV. CONSTRUCTION, MAINTENANCE AND OPERATION. The grant of right herein made to the Licensee is subject to each and all of the terms, provisions, conditions, limitations and covenants set forth herein and in Exhibit B, hereto attached. Article V. IF WORK IS TO BE PERFORMED BY CONTRACTOR. If a contractor is to do any of the work performed on the Wireline (including initial construction and subsequent relocation or substantial maintenance and repair work), then the Licensee shall require its contractor to execute the Licensor's form Contractor's Right of Entry Agreement. Licensee acknowledges receipt of a copy of the Contractor's Right of Entry Agreement and understands its terms, provisions, and requirements, and will inform its contractor of the need to execute the Agreement. Under no circumstances will Licensee's contractor be allowed onto Licensor's premises without first executing the Contractor's Right of Entry Agreement. Article VI. TERM. This Agreement shall take effect as of the date first herein written and shall continue in full force and effect until terminated as herein provided. Article VII. SPECIAL PROVISIONS. None. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date first herein written. UNION PACIFIC RAILROAD COMPANY By: Contracts Representative WITNESS CITY OF WOODBURN x jJlt9?~+ cj'/o ~c/JLr BY~ ...--...-. ._~_...~-'~.__._-'-----_.- H FORM OR- 0404-[; REV. 5- 15- 98 OVERHEAD WIRELINE CROSSING 750 VOLTS OR LESS NOTE: ALL AVAILABLE DIMENSIONS MUST BE FILLED IN TO PROCESS THIS APPLICATION. @ ~". S; "I"" 385'" FT. ~n:- I ~H NOTE 8 6 9i 'I I I 1 ~FT. o ,>=0. "'~ i TO IAJOOO6U1l.N I NEltoREST FO. f;. lOlltNl ~R" SlGN,6.l 6 CDIAl llN( ISE( NOTE 2; l...- Tlll'-QF-RAIL 3~n. I ! o On. t DI~TANCE ALONG TRACie. F"R0t.4 ~ECTIQI'Il LINE CACSSINCi I NeT(: T~J5 CIM(NSICN R(OUlr::<[C IN .ALL ClroSES. AT lOCATIQNS NOT USINC. SECTIONS? CIS1AN([ TC A LEG...l ~URVEy LINE I~ RECUJfOEO; I 3Ln. '~T~'~ SHOW I'UCDoENT Of GUY ANCHIlftS @ RF<O 5 Fit" @ Jj~ it 30 FT. 2..7 FT. a 0 FT. \ .i I. '" ~FT. llollN-SO') l.!_~)r. h"IN.50') NOTES: t SEE NOlES, 4,5 6 71 \..., I SEE NOTES,rj'6 & 7; II ALL HORIZONTAL DISTANCES TO BE IoIEASURED AT RIGHT ANGLES FROIol Cl OF TRACK, EXCEPT AS'NQTED. ,/ 21 IoIINI...... 23.5' OR 24' ABOVE TOP-OF-RAIL CLEARANCE REQUIRED. REFER TO WIRELlNE CLEARANCt-ctfART. 31 MINI"""~' CLEARANCE REOUIRED ABOVE SIGNAL AND COYMUNICATION LINES. REFER TO WIRELINE CLEARANCE CHART. 41 POLES IIJST BE LOCATED 50' OUT FROM Cl OF OUR MAiNo BRANCH, A/oI) RUNNING TRACKS, CTC SIDINGS, ANO HEAVY TONNAGE SPURS. 51 REGARDLESS OF THE VOLTAG~ UNGUYED POLES SHALL BE LOCATED A MINIIoIUIoI DISTANCE FROMCl OF ANY TRACK EOUAL TO THE HEIGHT OF POLE ABOVE GROUNOLlNE PLUS 10 FEET. 6) POLElS) I INCLUDING STEEL POLESI MUST BE LOCATED A MINIMUM DISTANCE FROW OUR SIGNAL AND OOWNUNICATION LINES EOUAL TO THE HEIGHT OF THE POLE ABOVE GROUNDLINE OR ELSE BE GUYED AT RIGHT ANGLES TO OUR LINES. 7) POLE LOCATION ADJACENT TO INDUSTRY TRACKS ......ST PROVIDE AT LEAST 10' CLEARANCE FROlI Cl OF TRACK WHEN hEASURED AT RIGHT ANGLES. IF LOCATED ADJACENT TO CURVE TRACK, THEN SAID CLEARANCE ......ST BE INCREASED AT A RATE OF 1-1/2- PER DEGREE OF ClltVE TRACK. 81 POWER LINES lIJST BE LOCATED A MINIIUA OF 500' FRlllI THE EN) OF ANY RAILROAD BRIDGE OR 300' FROM It OF ANY CULVERT. 91 ALLOWABLE FIXED OBJECTS INCLUDE: BACKWALLS OF BRIDCES; It OF ROAD CROSSINCS Ii OVERHEAD VIADUCTS l GIVE ROAD NAIlEI, OR It ClA..VERTS. . . . . .~ .' .: .. i~ k//~FT. IloIlN.4') I SEE NOTE 3) ~ 27. S FT. l SEE NOTE 2) @ AI IS WIRELlNE CROSSING WITHIN DEDICATED STREET ?_YE5; ~NO; BJ IF YES, NAIoIE OF STREET CI TYPE WIRElINE CROSS ING:_ TElEPHONE;_ TElEV(SIO~ FIBER OPTIC; OTHER; DJ VOlTAGE TO BE CARRIED 1#0 ;Uti[. NO. OF WIRES 1 E I CURRENT TO BE CARR I ED tJ 0 WIlli:. fI WIRELlNE WILL PASS OVER:_UNDER:_UPRR COIoNJNICATlON OR SIGNAL llNE?-f WHAT IS THE IlINIIIII CLEARANCE BETWEEN WIRES? _F ET. GI WIll ANY ATTACItoENTS BE MADE TO ANY EXISTING POLES? ~ HI WILL ANY ATTACIIlENTS BE MADE TO RAilROAD'S II WHAT TYPE OF FACILITY WILL LINE BE SERVING? JI APPlICANT HAS CONTACTED 1-800-33&-9193, l)/fTA 6 5 rt:tI'V1 lL P. CllYotMlCATlDN DEPAR1\lQlT, AND HAS DETERIotINED FIBER OPTIC CABLE _DOES ; --A-mT~ 3X'~N VICINITY OF WORK TO BE PERFOIIIED. TI CKET NO. EXHIBIT " A" ,ref" ".llAQ40 U~( (lhlT - 00 NO' wAITE IN T"I~ eo,) ~() \ RR FILE 'F) Hb IJ.J s~I\,,"1 (,'KI. OJ'l tk'~ .f(c..c;"k WARN NG IN AU. ClCCASIClI6, II. P. ClMoIlN I CA TIOlIS DD'AIllUDlT _T IE CCNTACTDI IN ADYANCE Of IMY _ TO IlETENlINE ElliS TENCE MIl UlCATllIII or f11Q1 lII'TlC CAILL PHlIIIE I 1-1OO-:D6-1 113 .-'..-y--. ,..'"-.... .-,.- '... . - ..EXB 980112 .. AppvwcI, AVP-Law EXHIBITB Section 1. 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 Licensor to use and ~ its entire property including the right and power of the Licensor to construct. maintain. repair, renew, use, operate, change, modify or relocate railroad tracks. 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 freely done at any time or times by the Licensor without liability to the Licensee or to any other party for compensation or damages. b) The foregoing grant is also subject to all outstanding superior rights (including those in favor of licensees and lessees of the llcensor's property, and others) and the right of the llcensor to renew and extend the same. and is made without covenant of title or for quiet enjoyment. Section 2. CONSTRUcnON. MAIN1'ENANCEAND OPERATION. a) If the W1reline or any part thereof is to be Jccated above the top of the rails of any track or comm1mication and signal lines, irduding static wires, overhead cL:.u.."...C8 provided by the Wlreline shall be no less than that shown on Exhibit A The Wlreline shall be constructed. operated. maintained. repaired. renewed. modified and/or reconstructed by the Licensee in strict conformity with the Specifications prescribed in the current issue of the National Dectrica1 Safety Code of the American National Standards Insti.tule. In the event such Specifications conflict in any respect with the requirements of any federal, state or municipa11aw or regulation. such requirements sbIIl gcMml on all points of conflict, but in all other respects the Specifications shall apply. b) An work performed on property of the Ucensor in connection with the construction. maintenance, repair, renewal. modification or reconstruction of the Wlreline shall be done to the satiafaction of the llcensor. c) If the Wireline is an ezisting one not conforming in its construction to the above provisions of this Section 2. the Licensee shall within ninety (90) days after the date hereof, reconstruct it so as to conform therewith. d) The Wlreline shall be constructed. maintained and operated by the Licensee in such manner as not to be or consti.tule a bJzard to aviation. WUh respect to the Wlreline the Licensee, without expense to the Licensor, will comply with all requirements of law and of public authority, whether federal. state or locaL including but not limited to aviation authorities. e) In the operation of the W1reline, the Lkensee shall not transmit electric current at a difference of potential in excess of the voltage iIdcated on E:zhibitA If the voltage indicated is in ezcess of seven hundred fifty (750) volts. and the Wlreline is, or is to be, buried. at any 1cx:ation on the property of the Licensor outside track ballast sections or roadbed. the Licensee slxxIl install metallic: corduit. or non-meta1lic conduit encased in a minimwn of three (3) inches of concrete with a minimwn of four (4) feet of ground cover the entire length of the WueJine on the property of the llcensor. A Wlreline buried. by removal of the soil shall have. at a depth of one Q) foot beneath the surface of the ground directly above the Wlreline, a six (6) inch wide warning tape bearing the warning, "Danger-High Voltage,. or equivalent wording. A Wlreline encased in conduit, jcxked or bored under the property of the Uc:ensor, must be identified by placing warning signs, to be installed and properly maintained at the expense of the Ucensee, at each ed.ge of the Ucensor'a property. The Ucensee shall not utilize the signs in lieu of the warning tape where portions of the casing are installed by direct burial. Section 3. NOTICE OF COMMENCEMENT OF WORK. If an emergency should arise requiring immediate attention. the Licensee shall provide as much notice as pra:::ticable to Lkensor before commencing any work. In all other situations, the Licensee shall notify the llcensor at least ten nO) days (or such other time as the Licensor may allow) in advance of the commencement of arr[ work upon property of the Lkensor in connection with the construction. maintenance. repair, renewal modification. reconstruction. relocation or removal of the Wlreline. All such work shall be prosecuted diligently to completion. wlx.exb "'1 af4 Exhibit B ._" "."..--. --y----..--.-".. .- ...r X.EXB 980112 .m Approved, A VP-Law Section 4. UCENSEE TO BEAR ENTIRE EXPENSE. The Licensee shall bear the entire cost and expense incurred in connection with the construction. maintenance, repair and renewal and any and all modification. revision. relocation. removal or reconstruction of the Wireline, including any and all expense which may be incurred by the Licensor in connection therewith for supervision or inspection. or otherwise. Section S. REINFORCEMENT RELOCATION OR REMOV M. OF WIRE1JNE. a) The license herein grcmied is subject to the needs and requirements of the Licensor in the operation of its railroad and in the improvement and use of its property, and the Licensee shall at the sole expense of the Licensee, reinforce or encase the Wireline (if it is an underground facility) to the satisfaction of the Licensor. or move all or any portion of the Wueline to such new location. as the Licensor may designate, whenever in the furtherance of its needs and requirements, the Licensor shall find such action necessary or desirable. b) All the terms, corxlitions and stipulations herein EDpreSSed. with reference to the Wireline on property of the Licensor in the location hereinbefore described shall. so far as the Wireline remains on the property, apply to the Wireline as modified. changed or relocated within the contemplation of this sectiOIL Section 6. INTERFERENCE. In the operation and maintenance of the Wireline the Licensee shall take all suitable precaution to prevent any interference (by irrluction. leakage of electricity, or otherwise) with the operation of the signal communication lines or other installations or facilities of the Licensor or of its tenants; and if. at any time, the operation or maintenance of the Wireline results in any electrostatic effects which the Licensor deems undesirable or harmful. or causes interference with the operation of the signal. communication lines or other installations or facilities, as now existing or which may hereafter be provided by the I..i.censor arx:i/or its tenants, the Licensee shall at the sole expense of the Licensee, irrunediately take such action as may be necessary to eliminate such interference. Section 7. PROTECTION OF F1BER OPTIC CABLE SYSTEMS. a) F'1ber optic cable systems may be buried on the Licensor's property. Protection of the fiber optic cable systems is of extreme importance since arrj break could disrupt service to users resulting in business interruption and loss of revenue and profits. Licensee sb:Ill telephone the I..i.censor at 1-800-336-9193 (a 24-hour number) to determine if fiber optic cable is buried anywhere on the Licensors premises to be used by the Licensee. If it is, Licensee will telephone the telecommunications company(ies) involved. arrange for a cable locator, make arrangements for relocation or other protection of the fiber optic cable. all at Licensee's expense, and will commence no work on the right of way until all such protection or relocation has been accomplisheci Licensee sb:Ill irdemnify and hold the Licensor harmless from and against all costs, liability and expense whatsoever (including, without limitation. attorneys' fees, court costs and expenses) arising out of or caused in any way by Licensee's failure to comply with the provisions of this paragraph. b) In addition to other indemnity provisions in this Agreement. the Licensee shall indemnify and hold the Licensor harmless from and against all costs, liability and expense whatsoever (including. without limitation. attorneys' fees, court costs and expenses) caused by the negligence of the Licensee, its contractor, agents and/or employees, resulting in (I) any damage to or destru:tion of arrj telecommunications system on Licensors property, and/or (2) any injury to or death of any person employed by or on beh::Ilf of arrt telecommunications company, ~or its contractor. agents andJor employees, on Licensors property, except if such costs, liability or expenses are caused solely by the direct active negligence of the Licensor. Licensee further agrees that it shall not have or seek recourse against Licensor for any claim or cause of action for alleged loss of profits or revenue or loss of service or other consequential damage to a telecommunication company using Licensor's property or a customer or user of services of the fiber optic cable on Licensor's property. Section 8. CLAIMS AND urns FOR LABOR AND MATERIAL. a) The Licensee sb:Ill fully pay for all materials joined or affixed to and. labor performed upon property of the Licensor in connection with the constru:tion. maintenance, repair, renewal. modification or reconstruction of the Wireline, and shall wt permit or suffer arrt mechanic's or materialman's lien of any kind or nature to be enforced against the property for any work done or materials furnished thereon at the instance or request or on behalf of the Licensee. The Licensee shall wtx.cxb Page 2 oC 4 Exhibit B .--.. -"Tc._.,.,-'-_.,.._._."'-_.~-~.._. --~._-*.- ~, X.EXB 980112 .41J1 Approved, A VP-Law indemnify and hold harmless the licensor against and. from arrj and all liens, claims, demands. costs and expenses of wh:rlsoever nature in arrj way connected with or growing out of such work done. labor performed. or materials furnished. b) The licensee shall promptly pay or discharge all taxes. charges and assessments levied upon. in respect to, or on account of the WJreline, to prevent the same from becoming a charge or lien upon property of the licensor, and so that the taxes, charges and assessments levied upon or in respect to such property shall not be increased because of the location construction or maintenance of the WJreline or any improvement appliance or fixture connected therewith placed upon such property, or on account of the licensee's interest therein. Where such tax. charge or assessment may not be separately made or assessed to the licensee but shall be included in the assessment of the property of the licensor, then the licensee shall pay to the licensor an equitable proportion of such taxes determined by the value of the licensee's property upon property of the licensor as compared with the entire value of such property. Section 9. RESTORATION OF UCENSOR'S PROPERTY. In the event the licensor authorizes the licensee to take down any fence of the licensor or in any marmer move or disturb any of the other property of the licensor in connection with the construction. maintenance. repair, renewal modification reconstruction relocation or removal of the Wlreline. then in that event the licensee shalL as soon as possible and at licensee's sole expense, restore such fence and. other property to the same condition as the same were in before such fence was taken down or such other property was moved or disturbed. and the licensee shall indemnify and hold hannless the licensor, its officers. agents and employees, against and from any and all liability, loss, damages, penalties. claims. demands. costs and expenses of whatsoever rx:rture, in::lu::tirq court costs and attorneys' fees, which may result from injury to or death of persons whomsoever. or damage to or loss or destruction of property whatsoever, when such injury. death. damage. loss or destruction grows out of or arises from the taking down of arrj fence or the moving or disturbance of arrj other property of the licensor. Section 10. INDEMNITY. a) As used in this Section. "Licensor" includes other railroad companies using the licensor's property at or near the location of the licensee's installation and their officers. agents, and employees; "Loss. includes loss, damage, claims, demands, actions, causes of action. penalties, costs, and ezpenses of whatsoever nature. including court costs and attorneys' fees, which may result from: a) injury to or death of persons whomsoever (including the licensor's officers, agents. and employees, the Ucensee's officers, agents, and employees. as well as any other person); and/or b) damage to or loss or destruction of property whatsoever (in::luding licensee's property, damage to the roadbed. tracks. equipment or other property of the licensor, or property in its care or custody). b) As a major inducement and in consideration of the license and permission herein granted. the licensee agrees to indemnify and hold harmless the licensor from arrj Loss which is due to or arises from: 1. The prosecution of any work contemplated by this Agreement including the installation. construction. maintenance, repair, renewal. modification. reconstruction. relocation. or removal of the Wire1ine or any part thereof; or 2. The presence, operation. or use of the Wire1ine or electric current conducted thereon or escaping therefrom. except to the extent that the Loss is caused by the sole and direct negligence of the licensor. Section 11. REMOVAL OF WIREI.lNE UPON TERMINATION OF Al":RP.P.MF.NT, Prior to the termination of this Agreement howsoever, the licensee shall at licensee's sole ezpense, remove the WJreline from the property of the Ucensor and restore such property to as good a condition as it was in before the W1re1ine was origirrillyconstructed. all to the satisfaction of the licensor. If the licensee fails to do the foregoing, the licensor may perform the work of removal and restoration at the expense of the licensee. The licensor shall not be liable to the licensee for any damage sustained by the licensee as a result of the removal of the Wire1ine by the licensor as in this section provided. nor shall such action prejudice or impair any right of action for damages or otherwise that the licensor may, at the time of such removal have against the licensee, wlx.cxb Pap3oC4 Exhibit B .~"-~'"--Y----"..+~- ~I ':=.:xB 980112 .Jnn Approved. A VP-Law Section 12. WAIVER OF BREACH. The waiver by the Licensor of the breach of any condition. covenant or agreement herein contained to be kept, observed and performed by the Licensee sh::rll in no way impair the right of the Licensor to avail itself of any remedy for any subsequent breach thereof. Section 13. TERMINATION. a) If the Ucensee does not use the right herein granted or the Wireline for one (1) year, or if the Ucensee continues in default in the performance of any covenant or agreement herein contained for a period of thirty (30) days after written notice from the Ucensor to the Ucensee specifying such default, the Licensor may, at its option. forthwith immediately terminate this Agreement by written notice. b) In addition to the provisions of subparagraph a) above. this Agreement may be terminated by written notice given by either party hereto to the other on any date in such notice stated. not less. however, than thirty (30) c;iays subsequent to the date upon which such notice shall be given. c) Notice of default and notice of termination may be seIVed personally upon the Ucensee or by mailing to the last kn::>wn address of the Licensee. Termin:Ition of this Agreement for arry reason shall not affect any of the rights or obligations of the parties hereto which may have accrued. or liability. accrued. or otherwise. which may have arisen prior thereto. Section 14. AGREEMENT NOT TO BE ASSIGNED. 'The Licensee shall not assign this Agreement, in whole or in part. or any rights herein granted. without the written consent of the Licensor. and it is agreed that any transfer or assigmnent or attempted transfer or assignment of this Agreement or any of the rights herein granted. whether vohmtmy, by operation of law. or otherwise. without such consent in writing, shall be absolutely void and. at the option of the Ucensor, shall terminate this Agreement. Section 15. SUCCESSORS AND ASSIGNS. Subject to the provisions of Section 14 hereoL this Agreement shall be binding upon and inure to the benefit of the parties hereto, their heirs, executors, administrators, successors and assigns. wlx.exb P.4of4 Exhibit B ._. -... ..-.-.. -.....-.-.... ...--......--. -..-.-.-.---. -