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Res 1531 - Union Pac Fiber Opti COUNCIL BILL NO. 1954 RESOLUTION NO. 1531 A RESOLUTION ENTERING INTO A WIRELlNE CROSSING AGREEMENT WITH UNION PACIFIC RAILROAD COMPANY TO ALLOW FIBER OPTIC CABLE CROSSING AT MILEPOST 735.000 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 735.000, 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 735.000. Section 2. That the Mayor is authorized to sign said agreement on behalf of the city. Approved as to form~ .'-~~ City Attorney -x-/~-Oj~ Date APPROVED: Richard Jennin s, Passed by the Council Submitted to the Mayor Filed in the Office of the Recorder March 22. 1999 March 23, 1999 March 23, 1999 March 23. 1999 Approved by the Mayor ATTEST: /0 ~ Ma~nnant, Recorder City of Woodburn, Oregon Page 1 - COUNCIL BILL NO. 1954 RESOLUTION NO. 1531 ->'.-.";."W"" 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 Wire line for a purpose other than the above- mentioned, and said Wire line 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. -.."T""d.. ...-.....-.--... ....--... .... .... .-...-......-.....-- .................. 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 fl]~~ ~ict rLt..-<Jy-o( ~ By ~~r~{ .._....,..~."._. __.__..........._.~."..'_._"H_~_..__,...,......,',..~._._ ". .,._.".~'_"_._.,._..,"_,..~".,,_ ."..._~..__.-.,--............_ FORM OR- 0404- REV. 5- 15- 98 OVERHEAD WIRELINE CROSSING 750 VOLTS OR LESS NOTE: ALL Av~ILABLE OlMENSIONS MUST BE FILLED IN TO PROCESS THIS APPLICATION. @ 385" FT. ~n:- I!:EE ~(\TE e IS 9i J;i~. S 1=01* r ~FT. i TO Wooo6/J1Ul I NEAREST ~.~. TO'N~: o li~ -+-R~ SIGN~L 6 COMU. L] N( . 5H. NOTE 2; lrTllP-Of-RAIL 3~FT. I ! I 31.JT. '~T~.~ SHOW Pl.ACBLNT Of GUY ANCHORS @ Rt;.5 f:iJ'w JJ~ 2^ " . ~FT. ~FT. a ~ ~T. ' .i '" 71-FT. 1l.nN. SO' 1 li Fr. hUN. 50'! 1 StE NOlES 4, S 8 7; '. (SEE NOTES ~..6 6 7: NOTES: ", I I II ALL HORIZONTAL OISTANCES TO BE NEASURED AT RIGHT ANGLES FROtol'l OF TRACK, EKCEPT AS-I<<1TED. /. 21 ...INI........ 23.5' OR 24' ABOVE TOP-OF-RAIL CLEARANCE REQUIRED, REFER TO WIRELlNE CLEARANC~-Cf(."u. 31 MINI........... CLEARANCE REOUIRED ABOVE SIGNAL AND COUWUNICATION LINES, REFER TO WIRELINE CLEARANCE CHART. 'I' POLES IIJST BE LOCATED SO' OUT FROM II OF OUR WAIN, BRANCH, AN) RUNNING TRACKS, CTC SIDINGS, AND HEAVY TONNAGE SPURS. 51 REGARDLESS OF THE VOLTAG~ UNGUYED POLES SHALL BE LOCATED A MINIIolUW DISTANCE FROMIl OF ANY TRACK EOUAL TO THE HEIGHT OF POLE ABOVE GROUNDLlNE PLUS 10 FEET. 61 POLElS) llNCLUDING STEEL POLESI IolUST BE LOCATED A MINI........ DISTANCE FROM OUR SIGNAL AND COWMUNICATION LINES EOUAL TO THE HEIGHT OF THE POLE ABOVE GROUNOLINE OR ELSE BE GUYED AT RIGHT ANGLES TO OUR LINES. 1) POlE LOCATION ADJACENT TO INDUSTRY TRACKS MUST PROVIDE AT LEAST 10' CLEARANCE FROIol'l OF TRACK WHEN MEASURED AT RIGHT ANGLES. IF LOCATED ADJACENT TO CURVE TRACK. THEN SAID CLEARANCE MUST BE INCREASED AT A RATE OF 1-1/2- PER DEGREE OF CURVE TRACK. . 81 POWER LINES IIJST BE LOCATED A ...INIIolUM OF 500' FROM THE ENO OF ANY RAILROAD BRIDGE OR 300' FROM II.. OF ANY CULVERT. 91 ALLOWABLE FIXED OBJECTS INCLUO~ BACKWALLS OF BRIDGES; lI.. OF ROAD CROSSINGS a OVERHEAD VIADUCTS 'GIVE ROAD NAMEI, OR II.. CULVERTS. . I . . . .~ .' I~ .. i~ ~/~FT. '...IN....! (SEE NOlE 31 'v 27.5 FT. l SEE NOTE 21 @ . .. I. AI IS WIRElINE CROSSING WITHIN DEDICATED STREET 7_YESi ~NOi Bl IF YES, NAIolE OF STREET CI TYPE WIRElINE CROSS ING:_ TELEPHONE;_ TELEVISION;~ FIBER OPTIC; 01 ~~~E TO BE CARRIED f}lo t1J ti NO. OF WIRES I E! CURRENT TO BE CARRIED Llo III ~ FI rtIRElINE IILL PASS OVER:_UNOER:_UPRR Ca.t.llNICATlDN DR SIGNAL LINEr'; WHAT IS THE lllNl1Ul CLEARANCE BETWEEN WIRES? _F ET. GI IILL ANY ATTACIMlITS BE MADE TD ANY EXISTING POLES? ~ ~l ~~ ~~EArrA~~~B~I~O~I~~ :I~~~~~ c t...~/J/(),;e /HJtJ JI APPLICANT HAS CONTACTED 1-800-336-9193, DATA 6 5 rt:JI'Y'l u. P. COIMJlICATIDN DEPARTJEW, AND HAS DETEIUIINED FIBER OPTIC CABLE _DOES i -A-D~~T"; ./iXlF..lN VICINITY DF WORK TO BE PERFORllED. TICKET N(L~~:2 ~~ EXHIBIT "A" I rOfl. UILf;O'[! IJ~E. C'Hl,Y - 00 I'oI(If ''''If"E Ik T"I~ ~" 'F) J.lb IJ.~ 601\" (,.,.1. aft tk'~ -f.,~(,k RR FILE WAR N N G I N AU. ClCCASICII6, II. P. ClMIJICI CATIONS llD'AA1WOCT _T IE blNTAeTm IN ADVAHCE Of ANY _ TO IlETERl/INE DCISTOlCE All) UlCATlCIN Of" FIlER OPTIC CAIILL _ I I-IIOCI-!5-IItl ~~-_.__.. ~..........._-- _...... ..-.....-...---.,- EXB 980112 AppvYed, AVP-Law EXHIBITB Section I. LlMlTA110N AND SUBORDINA110N 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 maintain 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. 6ber 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 Licensors property, and others) and the right of the Licensor to renew and extend the same, and is made without covenant of title or for quiet enjoymenL Section 2. CONSTRUCl'ION. MAINTENANCE AND OPERA110N. a) If the WJIe1ine or any part thereof is to be located above the top of the rails of any track or communication and signal lines. includin; static wires, 0IleIbead cleararx:e provided by the WJreline shall be no less than that shown on Exhibit A. The WJreline shall be constructed. operated. maintained. repaired. renewed. modified and/or reconstructed by the Licensee in strict conformity with the Specifications prescribed in the C\DTent issue of the National Electrical Safety Code of the .American National Standards Institute. In the event such Specifications conflict in any respect with the requirements of any federaL state or municipal law or regulation. su::h requirements slxIIl govern on all points of conflict, but in all other respects the Specifications shall apply. b) All work performed on property of the Licensor in connection with the construction. maintenance, repair. renewal modification or reconstruction of the WJreline shall be done to the satisfaction of the Licensor. c) If the Wireline is an existing 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 WJreline shall be constructed. maintained and operated by the Licensee in such manner as not to be or constitute a hazard to aviation W1ih respect to the WU'eline the Licensee, without upense 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 Licensee slxIIl not transmit e1ectrlc C\DTent at a difference of potential in excess of the voltage indicated on Eml:itA. If the "VOltage indicated is in excess of seven hundred fifty (750) volts, and the WU'eline is. or is to be. buried at any location on the property of the Licensor outside track ballast sections or roadbed. the Licensee sb:Ill install metallic conduit or non-meta1lic conduit encased in a minimum of three (3) inches of concrete with a minimum of four (4) feet of ground COYer the entire le~ of the Wueline on the property of the Licensor. A WU'eline buried by removal of the soil shall have, at a depth of one Q) foot beneath the swiace of the ground directly above the WJreline, a six (6) inch wide warning tape bearing the warning. "Danger-High Voltage.. or equivalent wording. A WJreline encased in conduit, jacked or bored under the property of the Licensor. must be identified by placing warning signs. to be installed and properly mainfained at the expense of the Licensee, at each edge of the Licensors property. The Licensee 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 practicable to Licensor before commencing any work. In all other situations. the Licensee shall notify the Licensor at least ten aO) days (or such other time as the Licensor may allow) in advance of the commencement of err[ work upon property of the Licensor in connection with the construction. maintenance. repair. renewal. modification. reconstruction. relocation or removal of the WlI'eline. All such work shall be prosecuted diligently to completion. wlx.cxb Pap 1 of4 Exhibit B , ,..",,_. .",~-.' ""'.-............-.._.~~.'.._."-"'- ..~ -,-" -....,-"._,~._.---,~~-<-~,....~"_..._,,..g..,~.'"._.._-.~~."".,_.........". I ~EXB 980112 .n 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 cm:i 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 5. REINFORCEMENT RELOCATION OR REM:OVAL OF WIRElJNE a) The license herein granted is subject to the needs and requirements of the licensor in the operation of its railroad and in the improvement and. use of its property. and the licensee shalL at the sole expense of the 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 Wlreline 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 tenns, coOOitions an::i stipulations herein expressed with refererx:e 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 section. Section 6. INTERFERENCE. In the operation and maintenance of the Wireline the Licensee shall take all suitable precaution to prevent any interlererx:e (by induction. leakage of electricity, or otheIWise) 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 WireIine results in any electrostatic effects which the Licensor deems undesirable or harmful. or causes interlerence with the operation of the signal, communication lines or other installations or facilities, as now existing or which may hereafter be provided by the Licensor anjjor its tenants, the Licensee shall at the sole expense of the Licensee, immediately take such action as may be necessary to eliminate such interference. Section 7. PROTECTION OF F1Bffi OPTIC CABLE SYSTEMS. a) F'Jber optic cable systems may be buried on the Licensor's property. Protection of the fiber optic cable systems is of extreme importance since any break could disrupt sexvice to users resulting in business interruption and loss of revenue cm:i profits. Licensee shall telephone the Licensor 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 ammgements 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 b:m been accomplished Licensee shall itxiemnify 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 Ucensee shall indemnify and hold the Ucensor harmless from and against all costs, liability and expense whatsoever (including, without limitation, attorneys' fees, court costs cm:i expenses) caused l:rt the negligezx:e of the Licensee, its contractor, agents and/or employees, resulting in (I) any damage to or destruction of any telecommunications system on licensor's property, and/or (2) any injury to or death of any person employed by or on beh:I1f of CTrf telecommunications company, and/or its contractor, agents and/or employees. on Licensor's property, except if such costs, liability or expenses are caused solely by the direct active negligence of the Licensor. Licensee further agrees that it shall not have or seek recourse against Licensor for any claim or cause of action for alleged loss of profits or revenue or loss of service or other consequential damage to a telecommunication company using 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 shall 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 not permit or suffer any 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 wlx.exb Page 2 of .. Exhibit B -_. -- ---...... ---'. ----.. -- .-. ------.- ..-----.-- '-EXB 980112 .n Approved. A VP-Law indemnify and hold harmless the licensor against and from any and all liens, claims, demands, costs and expenses of whatsoever nature in any way connected with or growing out of such work done, labor performed. or materials furnished.. b) The Licensee shall promptly pay or discharge all taxes, charges and assessments levied upon. in respect to, or on account of the Wueline, 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 mainten:mce of the Wueline 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 deternllned 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 manner 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 Wireline, 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 h:mnless the Ucensor. its officers. agents and employees, against and from any and all liability, loss, damages. penalties, claims, demands, costs and expenses of whatsoeYer nature. inclu::iinJ 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 any fence or the moving or disturbance of any other property of the licensor. Section 10. INDEMNITY. a) As used in this Section. "Licensor" includes other railroad companies using the 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 expenses of whatsoever nature, including court costs and attorneys' fees, which may result from: a) injury to or death of persons wmmsoever (including the licensor's officers, agents, and employees, the Licensee's officers, agents, and employees, as well as any other person); and/or b) damage to or loss or destruction of property whatsoever (including 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 any Loss which is due to or arises from: 1. The prosecution of any work contemplated by this Agreement including the installation. construction. mainten:mce, repair, renewal modification, reconstruction, relocation. or removal of the Wireline or any part thereof; or 2. The presence, operation. or use of the Wireline 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 WIRELINE UPON TERMINATION OF AGREEMENT. Prior to the termination of this Agreement howsoever, the licensee shall at licensee's sole expense, remove the Wueline from the property of the Ucensor and restore such property to as good a condition as it was in before the Wlreline was origiIxIllyconstructed. 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 Wireline 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.exb Pap 3 oC4 Exhibit B '-.........or-."...."-'~-_..._._.... -,-_._,,'-_._...__....,,-_.~.,--- <'EXB 980112 at Approved. A VP-Law Section I Z. WANER OF BREACH. The waiver by the Licensor of the breach of any condition. covenant or agreement herein contained to be kept, obseIVed and performed by the Licensee sh:rll in 00 way impair the right of the Licensor to avail itself of any remedy for any subsequent breach thereof. Section 13. TERMINATION. a) If the Licensee does not use the right herein granted or the Wireline for one (I) year. or if the Licensee 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 Licensor to the Licensee 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 to such notice stated. not less, however, than thirty (30) days subsequent to the date upon which such notice shall be given. c) Notice of default and notice of termination may be served personally upon the Licensee or by mailing to the last kmwn address of the Licensee. TermiIxrtion of this Agreement for any 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. TIle Licensee shall oot 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 assigmnent of this Agreement or any of the rights herein granted. whether voluntary, by operation of law. or otherwise, without such consent in writing, shall be absolutely void and. at the option of the Licensor, shall terminate this Agreement. Section 15. SU~SSORS AND ASSIGNS. Subject to the provisions of Section 14 hereof. this Agreement shall be binding upon and inure to the benefit of the parties hereto. their heirs, executors. administrators, successors and assigns. wlx.cxb P.4of4 Exlubit B -_..... -~<._-~._..<....