HomeMy WebLinkAbout3284RESOLUTION NO. 3 2 8 4
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF AUBURN, WASHINGTON,
AUTHORIZING THE MAYOR AND THE CITY CLERK TO EXECUTE AN ELECTRIC
SUPPLY LINE LICENSE AGREEMENT BETWEEN THE BURLINGTON NORTHERN
AND SANTA FE RAILWAY COMPANY (BNSF) AND THE CITY OF AUBURN FOR THE
CITY TO CONSTRUCT AND MAINTAIN ONE TWELVE INCH ELECTRICAL CONDUIT
UNDER THE BNSF RAILROAD TRACKS ALONG MAIN STREET BETWEEN `B'
STREET SW AND `C' STREET SW.
THE CITY COUNCIL OF THE CITY OF AUBURN, WASHINGTON, IN A
REGULAR MEETING DULY ASSEMBLED, HEREWITH RESOLVES AS FOLLOWS:
Section 1. The Mayor and City Clerk of the City of Auburn are herewith
authorized to execute an Electric Supply Line License Agreement between the City and
the Burlington Northern and Santa Fe Railway Company (BNSF) for the City to contract
and maintain one twelve inch electrical conduit under the BNSF railroad tracks along
Main Street befinreen `B' Street SW and `C' Street SW. A copy of said agreement is
attached hereto, denominated as Exhibit "A" and made a part hereto as though set
forth in full herein.
Section 2. The Mayor is hereby authorized to implement such
administrative procedures as may be necessary to carry out the directives of
this legislation.
Resolution No. 3284
November 7, 2000
Page 1
Dated this 20th day of November)
CITY OF AUBURN
CHARLES A. BOOTH
MAYOR
ATTEST:
A,
, -Z~/ &Ieja"'
Da ' Ile E. Daskam,
City Clerk
APPROVED AS TO FORM:
Michael J. Reynolds,
City Attorney
Resolution No. 3284
November 7, 2000
Page 2
Form Approved
by VP-Law
LICENSE FOR ELECTRIC SUPPLY LINE
ACROSS OR ALONG RAILWAY PROPERTY
(Electric Light, Power Supply, Irrespective of Voltage,
Overhead or Underground)
00-24722
THIS LICENSE, made this 30th day of October, 2000, subject to the terms and
conditions set forth herein, between THE BURLINGTON NORTHERN AND SANTA FE
RAILWAY COMPANY, a Delaware corporation, its successors and assigns, (hereinafter called
"Licensor"), party of the first part, and CITY OF AUBURN, a Washington municipal corporation
(hereinafter, whether one or more, called "Licensee"), party of the second part.
WITNESSETH, That the parties hereto for the consideration hereinafter expressed
covenant and agree as follows:
1. Subject to the terms and conditions hereinafter set forth, Licensor grants a
nonexclusive license to Licensee for it and/or its contractors to construct, maintain and
use an electric supply line containing a maximum of one (1) cable(s) across or along the
premises of Licensor at or near the station of Auburn, County of King, State of
Washington, Line Segment 0051, Mile Post 21.41, the kind and gauge of said
conductor(s), the phase, frequency and voltage of the electric circuit carried thereon and
the Iocation of said electric supply line shown by bold line upon the print hereto
attached, No. 1-23072, dated October 25, 2000 marked "Exhibit A", and made a part
hereof. For convenience, said electric supply line, with all conductor(s) and their
supporting or containing structures insofar as they relate to said electric supply line upon
said premises, is hereinafter called the "Electric Supply Line".
2. This agreement shall be effective
3. Licensee shall, at Licensee's own cost, construct and at all times maintain the
Electric Supply Line in accordance with the current Specifications for Electric Supply
Lines across or along Railway Property, adopted by the Electrical Section of the
Association of American Railroads, or any successor agency, except where by statute
or order of competent public authority a different type of construction or a different
degree of maintenance is required or permitted, in which case such construction or
maintenance shall be in accordance with such statute or order; provided, however, all
materials and workmanship employed in the construction and maintenance of the
Electric Supply Line shall be in accordance with the National Electrical Safety Code.
4. Licensee shall pay Licensor as compensation for this license the sum of Two
Thousand Five Hundred and No/100 Dollars ($2500.00).
5. During the construction and any subsequent maintenance performed on Electric
Supply Line, Licensee shall perform such work in a manner to preclude damage to the
property of Licensor, and preclude interference with the operation of its railroad. Upon
completion of the Electric Supply Line or after performing any subsequent maintenance
Resolution 3284 1of7
Exhibit A
thereon, Licensee shall, at Licensee's own cost, restore Licensor's premises to their
former state; and Licensee shall, within fifteen (15) days after receipt of bill there#or, pay
to Licensor the entire cost incurred by Licensor in providing flagmen protection or any
other means of protection which, in the judgment of Licensor, may be required during
the construction and maintenance of the Electric Supply Line. (The current rate, subject
to change without notice, for furnishing of Licensor's Flagman is a minimum daily charge
of $500.00, for the first eight hours, or any part thereof, per day, with an hourly charge of
$95.00 per hour for any time over eight hours per day).
6. If at any time during the term hereof Licensor shall desire to make any use of its
property with which the Electric Supply Line will in any way interfere, including the
relocation of existing or the construction of new lines of poles, wire(s), conduits and
other facilities in which it shall have an interest, Licensee shall, at Licensee's own cost,
within thirty (30) days after receiving written notice from Licensor to such effect, make
such changes in the Electric Supply Line as in the judgment of Licensor may be
necessary to avoid interference with the proposed use of its property.
7. Prior to any boring work on or about any portion of the Premises, Licensee shall
explore the proposed location for such work with hand tools to a depth of at least three
(3) feet below the surface of the ground to determine whether pipelines or other
structures exist below the surface, provided, however, that in lieu of the foregoing, the
Licensee shall have the right to use suitable detection equipment or other generally
accepted industry practice (e.g„ consulting with the Underground Services Association)
to determine the existence or location of pipelines and other subsurface structures prior
to drilling or excavating with mechanized equipment.
8. Prior to installation, five (5) days advance notice must be given to Licensor's
Roadmaster Wayne Lonngren at 605 Puyallup Ave., Tacoma, WA 98421, telephone
(206) 591-2563.
9. (A) EXCEPT AS SET FORTH IN SECTION 9(B), LICENSEE SHALL
RELEASE, INDEMNIFY, AND HOLD HARMLESS LICENSOR FOR ALL LOSSES,
DAMAGES, EXPENSES, INJURIES OR DEATH TO LICENSEE, ITS EMPLOYEES,
AGENTS AND CONTRACTORS, ARISING IN ANY MANNER FROM THE
PERFORMANCE OF THIS AGREEMENT, EXCEPT TO THE EXTENT PROXIMATELY
CAUSED BY LICEN30R'S GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT.
LICENSEE FURTHER AGREES TO RELEASE, INDEMNIFY, AND HOLD
HARMLESS LICENSOR FOR ALL LOSSES, DAMAGES, EXPENSES, INJURIES, OR
DEATH TO ANY PERSON, INCLUDING LICENSOR, WHICH ARISE IN ANY MANNER
FROM THE CONSTRUCTION, MAINTENANCE, USE, STATE OF REPAIR OR
PRESENCE OF LICENSEE'S ELECTRIC SUPPLY LINE, EXCEPT TO THE EXTENT
RESULTING SOLELY FROM THE NEGLIGENCE OR WILLFUL MISCONDUCT OF
LICENSOR.
(B) WHENEVER ANY EMPLOYEE, AGENT OR CONTRACTOR OF
LICENSEE OR ANY OF LICENSEE'S PARTIES MAKES ANY CLAIM FOR
PERSONAL INJURY OR DEATH AGAINST LICENSOR WITHIN THE MEANING OF
THE FEDERAL EMPLOYERS' LIABILITY ACT, OR ANY APPLICABLE SAFETY ACT,
(45 U.S.C. § 51 ET. SEQ.), FOR ANY INCIDENT CAUSED, WHOLLY OR IN PART,
BY PROPERTY, EQUIPMENT, FIXTURES OR CONDITION BELONGING TO OR
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SUBJECT TO THE CONTROL OF LICENSEE, OR CLAIMS OR ALLEGES THAT HE
OR SHE IS AN EMPLOYEE OF LICENSOR OR IS FURTHERING THE
OPERATIONAL ACTIVITIES OF LICENSOR, LICENSEE AGREES TO INDEMNIFY
AND HOLD HARMLESS LICENSOR FOR ALL LOSSES, DAMAGES, COSTS OR
EXPENSES RELATED TO SUCH CLAIM, REGARDLESS OF LICENSOR'S
NEGLIGENCE.
THE LIABILITY ASSUMED BY LICENSEE SHALL NOT BE AFFECTED BY
THE FACT, IF IT IS A FACT, THAT THE LOSS, DAMAGE, DEATH OR INJURY WAS
OCCASIONED BY OR CONTRIBUTED TO BY THE NEGLIGENCE OF LICENSOR,
ITS AGENTS, SERVANTS EMPLOYEES, OR OTHERWISE, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW; PROVIDED, HOWEVER, THAT
LICENSEE SHALL HAVE NO OBLIGATION TO ASSUME SUCH LIABILITY TO THE
EXTENT CAUSED BY THE NEGLIGENCE OF LICENSOR OR ITS EMPLOYEES OR
AGENTS WHERE ASSUMPTION OF SUCH LIABILITY WOULD VIOLATE
WASHINGTON, OREGON, IDAHO OR THE PROVINCE OF BRITISH COLUMBIA
LAWS.
10. (a) Licensee shall, at its expense, procure and maintain throughout the term
of this License, a comprehensive general form of insurance covering liability, including,
but not limited to, Public Liability, Personal Injury and Property Damage, as well as
Contractual Liability in the amount of $1,000,000 per occurrence and $2,000,000 in the
aggregate. Such insurance shall contain no exclusion with respect to rail corridor of
Licensor in the care, custody or control of Licensee. Licensee's contractor shall also
procure and maintain the above coverage when on Licensor's property. LICENSOR
AND CATELLUS MANAGEMENT CORPORATION SHALL BE NAMED AN
ADDITIONAL INSURED.
(b) All risk insurance on the Electric Supply Line of the Licensee, or
Licensor's property in Licensee's care, custody and control, shall contain a waiver of
subrogation of claims against Licensor. Licensee shall maintain Workers Compensation
insurance which shall contain a waiver of subrogation against Licensor.
(c) All insurance shall be placed with insurance companies licensed to do
business in the State in which the Electric Supply Line is located, with a current BesYs
Insurance Guide Rating of B and Class X, or better. Licensee shall provide Licensor in
advance of said installation a Certificate of Insurance evidencing such insurance.
Insurance must provide for coverage of incidents occurring within fifty (50) feet of a
railroad track, and any provision in the insurance policy to the contrary must be
specifically deleted.
(d) A Railroad Protective Liability insurance policy issued in the name of
Licensor with limits of $2,000,000 for bodily injury and property damage per occurrence
with an aggregate of $6,000,000 must be provided when construction work will be
performed within fifty (50) feet of Licensor's tracks. The policv will remain in force durinq
the construction phase of this proiect and must be provided prior to Licensor siqninct this
license.
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(e) In lieu of providing a Railroad Protective Liability Insurance policy,
Licensee may participate in Licensor's Blanket Railroad Protective Liability Insurance
Policy available to Licensee or its contractor. The limits of coverage are the same as
above. The cost is $800.00.
X I elect to participate in Licensor's Blanket Policy;
F-I I elect not to participate in Licensor's Blanket Policy.
(fl The furnishing of insurance required by this Section shall in no way limit
or diminish the liability or responsibility of Licensee as provided under any Section of this
License.
11. (a) Licensee shall comply with all federal, state and Iocal environmental laws
and regulations in its use of Licensor's property, including, but not limited to, the
Resource Conservation and Recovery Act, as amended (RCRA), and the
Comprehensive Environmental Response, Compensation, and Liability Act, as amended
(CERCLA). Licensee shall not maintain a treatment, storage, transfer or disposal facility,
or underground storage tank, as defined by RCRA, on or under the rail corridor.
Licensee shall not release or suffer the release of hazardous substances, as defined by
CERCLA, on Licensor's property. Notwithstanding any other requirements in this
contract, Licensee assumes all responsibility for the investigation and cleanup of such
release and shall indemnify and defend Licensor and its agents for all costs and claims,
including consultant and attorney fees, arising in any manner out of such release or
Licensee's failure to comply with environmental laws, regardless of whether such costs
or claims are caused or contributed to by the negligence or alleged negligence of
Licensor, except to the extent such costs or claims are proximately caused by Licensor's
gross negligence or intentional misconduct.
(b) Licensee shall give Licensor timely notice of any release, violation of
environmental laws or inspection or inquiry by governmental authorities charged with
enforcing environmental laws with respect to Licensor's property. Licensee also shall
give Licensor timely notice of all measures undertaken by or on behalf of Licensee to
investigate, remediate, respond to or otherwise cure such release or violation.
(c) In the event that Licensor receives notice from Licensee or otherwise of a
release or violation of environmental laws which occurred or is occurring during the term
of this License, Licensor may require Licensee, at Licensee's sole expense, to take
timely measures to investigate, remediate, respond to or otherwise cure such release or
violation.
12. Upon written notice from Licensor, Licensee agrees to assume the defense of
any lawsuit, or other proceeding brought against Licensor by any public body, individual,
partnership, corporation, or other legal entity, relating to any matter covered by this
License for which Licensee has an obligation to assume liability for and/or save and hold
harmless Licensor. Licensee shall pay all the costs incident to such defense including,
but not timited to, attorneys' fees, investigators' fees, litigation expenses, settlement
payments, and amounts paid in satisfaction of judgments.
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13. if default shall be made in any of the covenants or agreements of Licensee
contained in this document, or in case of any assignment or transfer of this License by
operation of law, Licensor may, at its option, terminate this License by serving five (5)
days' notice in writing upon Licensee; but any waiver by Licensor of any default or
defaults shall not constitute a waiver of the right to terminate this License for any
subsequent default or defaults, nor shall any such waiver in any way affect Licensor's
ability to enforce any Section of this License. The remedy set forth in this Section shall
be in addition to, and not in limitation of, any other remedies that Licensor may have at
law or in equity.
14. Licensee shall promptly pay and discharge any and all liens arising out of any
construction, alterations or repairs done, suffered or permitted to be done by Licensee
on the Electric Supply Line and shall indemnify Licensor against any loss, liability or
expense incurred by Licensor on account of such liens. Licensor is hereby authorized to
post any notices or take any other action upon or with respect to the Electric Supply Line
that is or may be permitted by law to prevent the attachment of any such liens to
Licensor's premises; provided, however, that failure of Licensor to take any such action
shall not relieve Licensee of any obligation or liability under this Section or any other
Section of this License.
15. In case of eviction of Licensee by anyone owning or obtaining title to the rail
corridor on which the wire line is located, or the abandonment by Licensor of said rail
corridor, Licensor shall not be liable to Licensee for any damage of any nature
whatsoever or to refund any payment made by Licensee to Licensor hereunder, except
the proportionate part of any recurring rental charge which may have been paid
hereunder in advance.
16. Any contractor or subcontractor performing work on or in connection with the
Electric Supply Line shall for the purpose of this license, be conclusively deemed to be
the servant and agent of Licensee acting on behalf and within the scope of such
contractor's or subcontractor's employment for Licensee.
17. Licensee shall at all times, at Licensee's own cost, maintain the most effective
system and use the best known and most effective methods to protect the lines, wires,
tracks and service of Licensor and of any Licensee of Licensor whose permission to use
said rail corridor antedates the license and permission herein to Licensee, from
interference and physical hazard or health, and if necessary in order to prevent such
interFerence or hazard, Licensee shall, at Licensee's own cost, transpose Licensee's
circuits or make such changes in the construction or location of the Electric Supply Line
as may be specified by Licensor.
18. Any notice to be given by either party shall be deemed to be properly served if
deposited with the United States Postal Service, or other acceptable mailing service,
postage prepaid, addressed to either party, at the addresses and department shown
beneath signature of the parties.
19. In the event that Licensee consists of two or more parties, all the covenants and
agreements of Licensee herein contained shall be the joint and several covenants and
agreements of such parties.
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' 20. Neither Licensee, nor the heirs, legal representatives, successors or assigns of
Licensee, nor any subsequent assignee, shall assign or transfer this License or any
interest herein, without the prior written consent and approval of Licensor.
21. It is understood and agreed that this License shall not be placed of public record.
22. All the covenants and provisions of this License shall be binding upon the heirs,
legal representatives, successors and assigns of Licensee. No assignment by Licensee
shall be binding upon Licensor without the written consent of Licensor in each instance.
23. All questions concerning the interpretation or application of provisions of this
License shall be decided according to the laws of the State in which the Electric Supply
Line is located.
24. To the maximum extent possible, each provision of this License shall be
interpreted in such manner as to be effective and valid under applicable law, but if any
provision of this License shall be prohibited by, or held to be invalid under, applicable
law, such provision shall be ineffective solely to the extent of such prohibition or
invalidity, and this shall not invalidate the remainder of such provision or any other
provision of this License.
25. The waiver by Licensor of the breach of any provision herein by Licensee shall in
no way impair the right of Licensor to enforce that provision for any subsequent breach
thereof.
26. Notwithstanding any other provisions of this license, Licensee shall comply with
all statutes, ordinances, rules, regulations, orders and decisions issued by any federal,
state or local governmental body or agency established thereby relating to Licensee's
use of Licensor's premises hereunder.
27. This license is given by Licensor and accepted by Licensee upon the express
condition that the same may be terminated at any time by either party upon thirty (30)
days notice in writing to be served upon the other party, stating therein the date that
such termination shall take place, and that upon the termination of this license in this or
any other manner herein provided, Licensee, upon demand of Licensor, shall abandon
the use of the Electric Supply Line and remove the same and restore the rail corridor of
Licensor, as near as possible, to the same condition in which it was prior to the placing
of the Electric Supply Line thereunder. In case Licensee shall fail to restore Licensor's
rail corridor within 90 days after the effective date of termination, Licensor may proceed
with such work at the expense of Licensee. No termination hereof shall release
Licensee from any liability or obligation hereunder, whether of indemnity or otherwise,
resulting from any acts, omissions or events happening prior to the date the Electric
Supply Line is removed and the rail corridor of Licensor restored as above provided.
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28. This License is the full and complete agreement between Licensor and Licensee
with respect to all matters relating to license on the premises, and supersedes any and
all other agreements between the parties hereto relating to license on the premises.
Catellus Management Corporation is acting as agent for The Burlington Northern And
Santa Fe Railway Company.
IN WITNESS WHEREOF, the parties have executed this agreement in duplicate the day
and year first above written.
THE BURLINGTON NORTHERN AND SANTA FE RAILWAY
COMPANY
By: Catellus Management Corporation
Its Attorney in Fact
4545 Fuller Drive, Suite 105
Irving, TX 75038
By:
James A. Ball, Manager Contracts
CITY OF AUBURN
Mayor
25 West Main
Auburn, Washington 98001-4998
By: 4~ f~ -
Charles A. Booth
Title: Mavor
ATTEST:
Dan'elle E. Daskam,
City Clerk
AP R VED AS TO FORM:
Michael J. eynol s
City Attorney
7 of 7
TRACKING N0.00-24722
EXHIBIT "A"
ATTACHED TO CONTRACT BETWEEN
THE BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANY
AND
CITY OF AUBURN
FORT WORTH, TEXAS 1
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