HomeMy WebLinkAbout3293RESOLUTION NO. 3 2 9 3
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF AUBURN, WASHINGTON,
AUTHORIZING THE MAYOR AND THE CITY CLERK TO EXECUTE A LICENSE FOR
BICYCLE AND PEDESTRIAN TRAIL ON RAILROAD PROPERTY THE UNION
PACIFIC RAILROAD COMPANY (UPRR) AND THE CITY OF AUBURN FOR THE CITY
TO CONSTRUCT AND MAINTAIN A PUBLIC BICYCLE AND PEDESTRIAN
RECREATIONAL TRAIL ON RAILROAD PROPERTY.
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 a License for Bicycle and Pedestrian Trail on Railroad Property
between the City and the Union Pacific Railroad Company (UPRR) for the City to
construct and maintain a public bicycle and pedestrian recreational trail on UPRR
property. A copy of said License is attached hereto, denominated as Exhibit 1" 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. 3293
November 21, 2000
Page 1
. 1~
Dated this rY day of December, 2000.
CITY OF AUBURN
CHARLES A. BOOTH
MAYOR
ATTEST:
Dani Ile E. Daskam,
City Clerk
APPROVED AS TO FORM:
Michael J. Reynolds,
City Attorney
Resolution No. 3293
November 21, 2000
Page 2
Bike Path License
Form to be Approved, AVP-Law
Folder No. 01904-27
LICENSE FOR
BICYCLE AND PEDESTRIAN TRAIL
ON RAILROAD PROPERTY
THIS AGREEMENT is made as of the day of , 20_, by and between UNION
PACIFIC RAILROAD COMPANY, a Delaware corporation (hereinafter called "Railroad"), and the CITY OF
AUBURN, a municipal corporation of the State of Washington, to be addressed at 25 W. Main St., Auburn,
Washington 98001-4998 (hereinafter called "Licensee").
IT IS AGREED AS FOLLOWS:
Section 1. RIGHT GRANTED.
In consideration of the sum of One Thousand Dollars ($1,000.00), Railroad hereby grants to the Licensee
and its successors and assigns, and officers, agents and contractors, and members of the public (as to use only) the
right, during the term hereinafter stated and upon and subject to each and all of the terms, provisions and conditions
herein contained, to enter upon the Railroad's property located in Auburn, King County, Washington, as more
particularly shown on the attached print marked Exhibit A, hereto attached and hereby made a part hereof, and to
therein construct, maintain and use certain recreational improvements consisting of a public bicycle and pedestrian
recreational trail, near Milepost 162.50, on the Seattle Subdivision. Railroad is agreeable to allowing this operation
to be undertaken, providing the following conditions are met:
(a) The Licensee, at its sole expense, shall construct, maintain, repair, renew, and reconstruct the trail.
(b) This Agreement and the license and permission herein granted shall be effective as of the date first
hereinabove written, and shall remain in full force and effect for a term of twenty (20) years unless terminated as
herein provided.
(c) The right hereby granted is subject and subordinate to (i) the right of Railroad to review and approve
Licensee's plans for the bike path prior to construction, and (ii) the Railroad's use of the Railroad's property for
Railroad and incidental purposes, and is subject to any and all encumbrances and rights (whether public or private),
irrespective of whether or not they are recorded, existing at the time of granting said right, and also to any and all
extensions and renewals of said existing encumbrances and rights. Licensee shall not damage, destroy or interfere
with the property or rights of non-parties in, upon or relating to the Railroad's said property, unless Licensee, at
Licensee's own expense, settles with and obtains release from such nonparties on mutually satisfactory terms.
(d) Said right is granted only insofar as the Railroad lawfully may grant the same, and the Railroad makes
no covenant or warranty of title, for quiet possession or against encumbrances. Said right includes only the
Railroad's property identified in paragraph (a) of this section, and no other property; and Licensee, by virtue of this
grant, shall not encroach upon, occupy or use any other property of the Railroad. Licensee's use of said property
shall be subject to the safety and performance of work provisions set forth in Section 2 of this Agreement.
(e) The Railroad grants to Licensee only the right for the purpose aforesaid, and no interest in land or
estate. Licensee shall not use or permit use of said property or any part thereof for any other purpose. No nonpariy
shall be admitted by Licensee to use or occupy any part of the Railroad's property for any purpose except as
specifically provided for herein without the Railroad's written consent. Nothing herein shall obligate the Railroad to
give such consent, which, if granted, may be subject to such terms and conditions as the Railroad, in the Railroad's
sole discretion, may deem to be necessary or convenient. If said properiy of the Railroad, or any part thereof, shall
cease to be used for the purposes aforesaid or shall be used for purposes unauthorized herein, then the right hereby
granted as to such properry or parts thereof shall cease and terminate.
Resolution 3298
Exhibit 1 Page l November 17, 2000
Bike Path License Folder No. 01904-27
Form to be Approved, AVP-Law
(fl To enable the Railroad to perform construction, operation or maintenance work on its embankments or
other improvements on the property, from time to time, as the Railroad in its sole discretion may deem necessary or
convenient, the Railroad may temporarily close the Licensee's trail after reasonable notice to Licensee, unless such
work is of an emergency status in which event Railroad may ciose the trail without prior notice to Licensee. If any
such work by the Railroad or the safety or operational needs of the Railroad necessitates the relocation of the
Licensee's trail improvements, the Licensee shall be given advance written notice of such work and a reasonable
time within which to remove any salvageable portions of such improvements; and, upon the completion of the
Railroad's work, the Railroad shall lay out a new corridor across its property wherein such improvements feasibly
can be relocated, and shall grade a substitute path within such corridor wherein the Licensee feasibly may reconstruct
its bike path and lay paving connecting those portions of its recreational trail that extend beyond the boundaries of
the Railroad's property.
Section 2. SAFETY AND PERFORMANCE OF WORK.
(a) All work by or on behalf of Licensee on the Railroad's property shall be performed by Licensee at
Licensee's own expense and without expense to the Railroad. All references herein to work of Licensee shall
include such work, whether performed by Licensee or Licensee's agents, employees or contractors.
(b) Before commencing any such work, Licensee shall give the Railroad at least ten (10) days notice,
exclusive of weekends and holidays, prior to the time work is to commence. Railroad's representative to be
contacted prior to entering upon Railroad's right of way is Jim Curtiss in Portland, Oregon, whose phone number is
(503) 249-2323. All of said work shall be performed at reasonable times and in such manner as not to endanger,
interfere with, interrupt or delay the Railroad's operations, nor damage the Railroad's property, nor cause injuries to
or death of persons or damage to or loss or destruction of property of the Railroad.
(c) Licensee shall exercise due care to prevent injuries to or death of persons and damage to or destruction
of property for the safety of whom or of which the Railroad may be responsible, and damage to or destruction of
property of the Railroad. To the extent it may lawfully do so, Licensee shall and does assume all risk of damage to
Licensee's own properly and injury to Licensee's own personnel, resulting from or incidental to the prosecution of
said work or from the presence of Licensee's property and personnel upon or about the Railroad's property,
regardless of any negligence on the part of the Railroad, howsoever.
(d) In performing said work on or in the vicinity of the Railroad's property, Licensee shall exercise special
care not to cause or create instability of rock, earth or other materials, or cause slides of falling rock, earth or debris,
nor to damage, obstruct or interfere with drainage, whether natural or artificial.
(e) The Railroad, at the expense of Licensee, which expense Licensee agrees to pay promptly upon receipt
of bill or bills therefor, shall furnish and station such flagman or flagmen as in the Railroad's judgment may be
necessary or expedient to protect the Railroad's property and operations at the site of all such work by Licensee near
any track of the Railroad. Licensee shall not perform any work in the vicinity of any track or tracks where the
Railroad had determined a flagman or flagmen should be stationed, unless such flagman or flagmen are present.
( fl Upon the completion of such work, Licensee shall restore and leave the Railroad's property in a
condition satisfactory to the Railroad, including filling and leveling of all holes and pits.
Page 2 November 17, 2000
Bike Path License Folder No. 01904-27
Form to be Approved, AVP-Law
Section 3. CLAIMS AND LIENS FOR LABOR AND MATERIAL.
Licensee shall not permit or suffer any mechanic's or materialman's lien of any kind or nature to be
enforced against the Railroad's property for any work done or materials furnished thereon at the instance or request
or on behalf of Licensee.
Section 4. COMPLIANCE WITH LEGAL REQUIREMENTS
Licensee, in performing the work, shall observe and comply with all applicable federal, state and municipal
and other laws, ordinances, rules and regulations, and shall apply for and obtain any and all public authority,
permission and licenses necessary therefor. Licensee shall indemnify and hold harmless the Railroad from and
against any loss, cost, damage and expense, liabilities, penalties, claims and forfeitures resulting from any failure of
Licensee to comply with the provisions of this section, or to comply with the requirements of any public authority,
license or permission obtained as aforesaid.
Section 5. LIABILITY
To the extent it may lawfully do so, the Licensee assumes all risk of loss or destruction of or damage to the
crossing, to property brought thereon by the Licensee or by any other person with the knowledge or consent of the
Licensee, and to all other property, including property of Railroad, and all risk of injury or death of all persons
whomsoever, including employees or Railroad, where such loss, damage, destruction, injury, or death would not
have occurred but for the presence of the crossing. The Licensee further agrees, to the extent it lawfully can do so, it
indemnify and hold harmless and defend Railroad, its officers, agents and employees, against and from all liability,
causes of action, claims or demands which any person may hereafter have or assert, arising out of or by reason of any
such loss, damage, destruction, injury, or death of persons.
Section 6. TERMINATION ON BREACH• WAIVER OF BREACH• TERMINATION FOR SAFETY OR
OPERATIONAL NEEDS.
(a) Railroad may terminate this license by giving Licensee notice of termination if Licensee defaults under
any obligation of Licensee under this license and, after written notice is given by Railroad to Licensee specifying the
default, Licensee fails either to immediately commence to cure the default, or to complete the cure expeditiously but
in all events within thirty (30) days after the default notice is given. A waiver by the Railroad of a breach by
Licensee of any covenant or condition of this Agreement shall not impair the right of the Railroad to avail the
Railroad of any subsequent breach thereof.
(b) Railroad may also terminate this license by written notice given to Licensee if the safety and
operational needs of the Railroad are materially affected or impaired by Licensee's use of Railroad's property, and
Railroad and Licensee cannot come to any mutual agreement and understanding as to how to alleviate or remedy
such safety and/or operational factors.
Section 7. DEFAULT.
If Licensee shall fail, refuse or neglect to do, keep, observe and perform each and all of the terms,
provisions, conditions and covenants of this Agreement, the Railroad, in addition to any other rights and remedies
the Raikoad may have, may perform any work which in the judgment of the Railroad is necessary to place the
Railroad's property in such condition as will not menace, endanger or interfere with the Railroad's facilities or
operations or jeopardize the Railroad's employees; and Licensee will reimburse the Railroad for the expense thereof.
Page 3 November 17, 2000
Bike Path License Folder No. 01904-27
Form to be Approved, AVP-Law
Section 8. CONTRACTOR'S RIGHT OF ENTRY AGREEMENT.
(a) The Licensee confirms that all work described herein will be performed by a contractor or
contractors hired by the Licensee. The Licensee agrees to require each of its contractors (and their respective
subcontractors) to execute Railroad's form of Contractor's Right of Entry Agreement that is marked EXHIBIT B,
hereto attached and hereby made a part hereof, and to provide to Railroad evidence of insurance coverage set forth in
Exhibit A-1 of the Right of Entry Agreement before commencing any work on Railroad's property.
(b) The Licensee shall also require its contractors/subcontractors to perform their construction work in such
a manner so as not to endanger or delay the movement of trains, engines or cars of Railroad, and so as not to injure
or endanger Railroad's officers, agents, employees or damage their property. The City shall also require its
contractors/subcontractors to give precedence to the movement of trains, engines and cars of Railroad, over the
movement of vehicles or equipment or construction activities of the Licensee's contractors/subcontractors.
Section 9. FIBER OPTIC CABLE WARNING.
Fiber optic cable systems may be buried on the Railroad's property. Protection of the fiber optic cable
systems is of extreme importance since any break could disrupt service to users resulting in business interruption and
loss of revenue and profits. Licensee shall telephone the Railroad at 1-800 336-9193 (a 24-hour number) to
determine if fiber optic cable is buried anywhere on the Railroad's 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, and will commence no work on the right of
way until all such protection or relocation has been accomplished.
Section 10. SUCCESSORS AND ASSIGNS.
This Agreement shall be binding upon and inure to the benefit of the parties hereto, their successors and
assigns, but Licensee shall not assign this Agr.eement or any right hereunder to any party without the prior written
consent of Railroad.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed, in duplicate, as
of the day and year first herein written.
p'prove as to Form:
!I~
~
Michael J. Reynolds,
City Attorney
CITY OF AUBURN
gy: ~ 1 4(, ~'lc
Title: Mavor Charles A. Booth
UNION PACIFIC RAILROAD COMPANY
By:
Title:
Page 4
November 17, 2000
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