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HomeMy WebLinkAboutR-1994-155 Right of Entry Agreement• • • RESOLUTION NO. R-94- \SS A RESOLUTION authorizing the City Manager and City Clerk of the City of Yakima to execute a Right of Entr) Agreement between the City of Yakima and the Union Pacific Railroad Company for purposes of conducting drainage system maintenance. WHEREAS, the City of Yakima has contracted with Blue Sky Tree Service for the performance of drainage system maintenance along the concrete drain line running from Wide Hollow Creek north to Mead Avenue; and WHEREAS, said drain line is on the property of the Union Pacific Railroad Company , and WHEREAS, the Union Pacific Railroad Company requires a Right of Entry Agreement and a payment of $500 00 before Blue Sky Tree Service can gain access and perform said drainage system maintenance on the Union Pacific Railroad Company property , and WHEREAS, the City Council has determined that it is in the best interest of the City to enter into a Right of Entry Agreement with the Union Pacific Railroad Company in order to allow Blue Sky Tree Service access to perform drainage system maintenance, now, therefore, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF YAKIMA. The City Manager and City Clerk are hereby authorized and directed to execute the attached and incorporated Right of Entry Agreement with the Union Pacific Railroad Company for the purpose of allowing Blue Sky Tree Service access to perform drainage system maintenance. ADOPTED BY THE CITY COUNCIL this 1?- day of Q , 1994 Ci)/11_:t ATTEST i Mayor City Clerk 3 UHRICH ASSISTANT VICE PRESIDEN' ROOM '13C 14'E DODGE FREE" OMAHA NEBRASKA 68.79 (4C2 2' 3753 FAX (402, 2" :493 UNION PACIFIC RAILROAD COMPANY CONTRACTS & REAL ESTATE DEPARTMENT November 17, 1994 J A. ANTHONY DIRECTOR -CONTRACTS & JOINT FACILITIES D D BROWN DIRECTOR -REAL ESTATE J L. HAWKINS DIRECTOR -OPERATIONS SUPPORT D H. LIGHTWINE DIRECTOR -REAL ESTATE W R. ULRICH DIRECTOR -BUILDING SERVICES 812193.ROE : R/W: WA: Yakima: CITY OF YAKIMA MR BRUCE R BATES (AND VIA "FAX" TO: 509/575-6116) c/o CITY OF YAKIMA, WASHINGTON - WASTEWATER DIV - DEPT OF ENGR & UTIL 2220 E VIOLA YAKIMA, WA 98901 Gentlemen: Attached are duplicate originals of a License covering Right of Entry for cutting and chipping trees and brush located at Yakima, Washington. In the spaces marked by an "X", please execute or arrange for execution of the attached document and have the signatures witnessed or attested, as indicated. The Washington Central Railroad Company's written approval is also required, as indicated. Please RETURN ALL COPIES of the document for execution on behalf of the Railroad Company in the enclosed self-addressed envelope. Your copy of the fully executed document will be returned to you, when approved by the Railroad Company. Also, please provide a resolution or other authorization for the party executing the documents, and Insurance Certificates, as required by the agreement. Also attached is Contractor's Endorsement which must be executed and returned, if work is to be performed by a contractor. Payment in the amount of $500.00 is due and payable upon your execution of the agreement. Please include your check, made payable to Union Pacific Railroad, with the return of the documents. This agreement will not be accepted by the Railroad Company until the initial payment is received and all Insurance Certificates are in proper form, if required by the agreement. If you require formal billing, you may consider this letter as a formal bill. If you have any questions, please contact me at (402) 271-4867. Sincerely /yours, 7 J. M. Martin Representative - Contracts ROE 880702 Form Approved, AVP -Law RIGHT OF ENTRY AGREEMENT 812193.ROE 11/17/93 THIS AGREEMENT is made and entered into as of the 17 th day of November, 1994, by and between UNION PACIFIC RAILROAD COMPANY, a Utah corporation (hereinafter the "Railroad"); and CITY OF YAKIMA, WASHINGTON - WASTEWATER DIVISION, DEPARTMENT OF ENGINEERING & UTILITIES, a Washington municipal corporation, of 220 E. Viola, Yakima, WA 98901; atten: Mr. Bruce R. Bates - Asst. Wastewater Supt.; telt: (509) 575-6078 (hereinafter the "Licensee"). IT IS MUTUALLY AGREED BY AND BETWEEN TEE PARTIES HERETO AS FOLLOWS: RECITALS: Railroad and Licensee have previously entered into a written agreement dated January 9, 1951, covering art easement to construct, maintain, renew and use a sewer pipeline located at or near Yakima, Washington. Said agreement is identified as Railroad's Audit number 75782. Railroad has subsequently entered into an operating agreement with the Washington Central Railroad to operate on the Yakima Branch. Licensee now desires permission to have it's contractor, Blue Sky Tree Topping Service cut, chip, & remove trees and brush from Railroad's property, in order to prevent tree root damage to the Licensee's existing sewer pipeline. The parties agree as follows: I. DEFINITION OF LICENSEE. For purposes of this agreement, all references in this agreement to the Licensee shall include the Licensee's contractors, subcontractors, officers, agents and employees, and others acting under its or their authority. I I . RIGHT GRANTED • PURPOSE. The Railroad hereby grants to the Licensee 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 and have ingress to and egress from the portion of Railroad's property in the vicinity of Mile Post 95 - Yakima Branch, at or near Yakima, Washington, for the purpose of cutting, chipping, and removing trees and brush to prevent tree root damage to Licensee's existing sewer pipeline. The right herein granted to Licensee is limited to these portions of the Railroad's property specifically described herein, or designated by the Railroad representative named in Article 4. III. TERMS AND CONDITIONS CONTAINED IN EXHIBITS A AND A--1. The terms and conditions contained in :Exhibits A and A-1, hereto attached, are hereby made a part of this agreement. Articles of Agreement Page 1 0702n IV. ALL EXPENSES TO BE BORNE BY LICENSEE; RAILROAD REPRESENTATIVE. The Licensee shall bear any and all costs and expenses associated with any work performed by the Licensee, or any costs or expenses incurred by the Railroad relating to this agreement. All work performed by Licensee on Railroad's property shall be performed in a manner satisfactory to the representative local Railroad representative (hereinafter the Railroad Representative): MR PAUL WEBER - ENGR DEPT C/O WASHINGTON CENTRAL RAILROAD COMPANY 6 WEST ARLINGTON YAKIMA, WA 98907 TEL #: (509) 453-9166 EXT 118; FAX #: (509) 452-9346 V. TERM; TERMINATION. A. The grant of right herein made to Licensee shall commence on the date first herein written above, and continue until 12/20/94, unless sooner terminated as herein provided, or at such time as Licensee has completed its work on Railroad's property, whichever is earlier. Licensee agrees to notify the Railroad Representative in writing when it has completed its work on Railroad property. B. This agreement may be terminated by either party on ten (10) days written notice to the other party. VI. CERTIFICATE OF INSURANCE. A. Before commencing any work, the Licensee will provide the Railroad with a Certificate issued by its insurance carrier providing the insurance coverage required pursuant to Exhibit A-1 of this agreement in a policy which contains the following type of endorsement: "Union Pacific Railroad Company is named as additional insured with respect to all liabilities arising out of Insured's, as Licensee, performance of any work on the property of the Railroad." B. Licensee warrants that this agreement has been thoroughly reviewed by its insurance agent(s)/broker(s) and that said agent(s)/broker(s) has been instructed to procure insurance coverage and an endorsement as required herein. C. All insurance correspondence shall be directed to: Union Pacific Railroad Company, Director (atten.: J. M. Martin - File # 812193.ROE), Room 1100, 1416 Dodge Street, Omaha, Nebraska 68179. Articles of Agreement Page 2 0702n VII. PROTECTION OF FIBER OPTIC CABLE SYSTEMS. Fiber optic cable systems may be buried on Licensor'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. Prior to beginning any work, the 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 property set forth herein. If it is, the Licensee shall also comply with and be subject to the provisions contained in Section 6 of Exhibit A. VIII. ENFORCEABILITY; CHOICE OF LAW; CHOICE OF FORUM. This agreement shall be governed, construed, and enforced .in accordance with the laws of the state of Washington. Litigation arising out of or connected with this agreement may be instituted and maintained in the courts of the state of Washington only, and the parties consent to jurisdiction over their person and over the subject matter of any such litigation, in those courts, and consent to service of process issued by such courts. IX. SPECIAL PROVISIONS. APPROVAL OF WASHINGTON CENTRAL RAILRAOD IS REQUIRED g Prior to entering Railroad's property for the purposes outlined herein, Licensee shall secure the written approval, on the line provided below, of the work proposed to be performed in connection with this project from: THE WASHINGTON CENTRAL RAILROAD COMPANY 6 WEST ARLINGTON YAKIMA, WA 98907 atten: Mr. Paul Weber - Engr. Dept.; tel #: (509) 453-9166 ext. 118; fax #: (509) 452-9346. LICENSEE'S CONTRACTOR MUST SIGN CONTRACTOR'S ENDORSEMENT AND FURNISH INSURANCE CERTIFICATE : Licensee shall require it's contractor, Blue Sky Tree Topping Service, of P.O. Box 240, Tieton, WA 98947, to execute the attached Contractor's Endorsement - 812193.ROE, and to furnish top the Railroad the proof of insurance coverage required under the terms of this agreement. PAYMENT OF FEE IS REQUIRED Licensee shall pay, and Railroad shall accept, upon the execution and return of this "instrument, the nonrefundable sum of $500.00 (FIVE HUNDRED DOLLARS) to cover Railroad's cost to prepare and administrate this agreement. Flagging charges are not included in the sum recited in the preceding paragraph, and will be billed separately if any flagging is required. Articles of Agreement Page 3 0702n IN WITNESS WHEREOF, the parties hereto have executed this agreement in duplicate as of the date first herein written. ATTEST: City Clerk (Pursuant to ordinance, resolution, or other evidence of proper authority to execute this instrument, a copy of which shall be attached to the Railroad's original counterpart of this document.) UNION PACIFIC RAILROAD COMPANY Federal Taxpayer I. D. # 13-6400825 ri By Title: Director - Contracts CITY OF YAKIMA, WASHINGTON - WASTEWATER DIVISION, DEPARTMENT OF ENGINEERING & UTILITIES Byx\�� Title: City Man er WASHINGTON CENTRAL RAILROAD COMPANY By: Articles of Agreement Page 4 Title: CONTRACTOR'S ENDORSEMENT - FILE # 812193.ROE A. As a condition to entering upon Licensor's right-of-way to perform work pursuant to this Agreement, Licensee's contractor: BLUE SKY TREE TOPPING SERVICE, of P. O. Box 240, Tieton, WA 98947; atten: Ms. Doris Gregory - Secretary; tel# : (509) 673-5651 (hereinafter "Contractor") agrees to comply with all the terms and provisions of this Agreement relating to the work to be performed and the insurance requirements set forth in Exhibit A-1. B. Before the Contractor commences any work, the Contractor will provide the Licensor with a certificate issued by its insurance carrier providing the insurance coverage required pursuant to Exhibit A-1 in a policy which contains the following type endorsement: UNION PACIFIC RAILROAD COMPANY is named as an additional insureds with respect to all liabilities arising out of Insured's performance of work on behalf of the Licensee. C. All insurance correspondence shall be directed to: J. M. Martin, (File # 812193.ROE), Room 1100, Union Pacific Railroad Company, 1416 Dodge Street, Omaha, Nebraska 68179. Witness: BLUE SKY TREE TOPPING SERVICE Articles of Agreement Page 5 0702n By: _ EXHIBIT A t -tion 1. NOTICE OF COMMENCEMENT OF WORK - FLAGGING. The Licensee agrees to notify the Railroad Representative at least 48 hours in advance of Licensee ,renting its work and at feast 24 hours in advance of proposed performance of any work by the Licensee in which an) arson or equipment will be within 25 feet of any track, or will be near enough to any track that any equipment extension (such as, but not limited to, a crane boas) will reach to within 25 feet of any track. Upon receipt of suc notice, the Railroad Representative wilt determine and inform the licensee whether a flagman need be present and whether the licensee need implement any special protective or safety measures. If any flagmen or other Special protective or safety measures are performed by the Railroad, such services will be provided at licensee's expense wit the understanding that if the Railroad provides any flagging or other services the Licensee shall not be relieved of any of its responsibilities or liabilities set forth herein. Section 2. LIMITATION AND SUBORDINATION OF RIGHTS GRANTED. (a) The foregoing grant of right is subject and subordinate to the prior and continuing right and obligation o• the Railroad to use and maintain its entire property including the right and potter of the Railroad to construct, maintain, repair, renew, use, operate, change, modify or relocate railroad tracks, roadways, 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 Railroad 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 Railroad's property, and others) and the right of the Railroad to renew and extend the same, and is made without covenant of title or for quiet enjoyment. Section 3. NO INTERFERENCE WITH RAILROAD'S OPERATION. No work performed by Licensee shall cause any interference with the constant, continuous and uninterrupted use of the tracks, properly and facilities of the Railroad its lessees, licensees or others, unless specifically permitted under this agreement, or specifically authorized in advance by the Railroad Representative. Nothing shall be done or suffered to be done by the Licensee at any time that would in any manner impair the safety thereof. When not in use, licensee's ,machinery and materials shall be kept at least 50 feet frau the centerline of Railroad's nearest track, and there shall be no crossings of Railroad's tracks except at existing open public crossings. Section 4. PERMITS. Prior to beginning any work, the Licensee, at its sole expense, shall obtain all necessary permits to form any work contemplated by this agreement. Section 5. MECHANIC'S LIENS. The Licensee shall pay in full all persons who perform labor or provide materials for the work to be performed by Licensee. The Licensee shall not permit or suffer any mechanic's or materiatmen's liens of any kind or nature to be enforced against any property of the Railroad for any such work performed. The licensee shall indemnify and hold harmless the Railroad from and against any and all liens, clainas, demands, costs or expenses of whatsoever nature in any way connected with or growing out of such work done, labor performed, or materials furnished. Section 6. FIBER OPTIC CABLE SYSTEMS. If fiber optic cable is buried anywhere on the Railroad premises to be used by Licensee, the Licensee will telephone the telecommunications corpany(ies) involved, arrange for a cable locator and make arrangements for relocation or other protection of the fiber optic cable prior to beginning any work on Railroad's premises. In addition to the liability terms elsewhere in this Agreement, the Licensee shall indemnify and hold the Railroad harmless against and from all cost, liability and expense whatsoever (including, without Limitation, attorney's fees and court costs and expenses) arising out of or in any way contributed to by any act or omission of the Licensee, its subcontractor, agents and/or employees, that causes or in any way ordegree contributes to (I) any damage to or its of any telecommunications system by the licensee and/or subcontractor, agents and/or employees, on Railroad's property, (2) any injury to or death of any person employed by or on behalf of any telecommunications company and/or its contractor, agents and/or employees, on Railroads property and/or (3) any claim or cause of action for alleged loss of profits or revenue by, or loss of service by a customer or user of, such telecommunication corrpany(ies). Section 7. COMPLIANCE WITH LAWS. In the prosecution of the work covered by this agreement, the licensee shall comply with all applicable federal, state and local laws, regulations and enactments affecting the work. The licensee shall use only such methods as are consistent with safety, both as concerns the licensee, the Licensee's agents and employees, the officers, agents, employees and property of the Railroad and the public in general. The licensee (without limiting the txhibit A 0703n 1 of 3 ROE 680702 -Washington Form Approved, AVP -law generality of the foregoing) shall comply with all applicable state and federal occupational safety and health acts and regulations. All Federal Railroad Administration regulations shall be followed when work is performed on Railroad's property. If any failure by the Licensee to comply with any such laws, regulations, and enactment' II result in any fine, penalty, cost or charge being assessed, imposed or charged against the Railroad, the Licer, shall reimburse and indemnify the Railroad for any such fine, penalty, cost, or charge, including without limitation attorney's fees, court costs and expenses. The Licensee further agrees in the event of any such action, upon notice thereof being provided by the Railroad, to defend such action free of cost, charge, or expense to the Railroad. Section 8. SAFETY INSTRUCTIONS. Safety of personnel, property, rail operations and the public is of paramount importance in the prosecution of the work pursuant to this agreement. As reinforcement and in furtherance of overall safety measures to be observes by the Licensee (and not by way of limitation), the following special safety rules shall be followed: (a) The Licensee shall keep the job site free from safety and health hazards and ensure that its employees are competent and adequately trained in all safety and health aspects of the job. The Licensee shall have proper first aid supplies available on the job site so that prompt first aid services can be provided to any person that may be injured on the job site. The licensee shall promptly notify the Railroad of any U.S. Occupational Safety and Health Administration reportable injuries occurring to any person that may arise during the work performed on the job site. The Licensee shall have a non -delegable duty to control its employees, while they are on the job site or any other property of the Railroad to be certain they do not use, be under the influence of, or have in their possession any alcoholic beverage or illegally obtained drug, narcotic or other substance. (b) The employees of the Licensee shall be suitably dressed to perform their duties safely and in a manner that will not interfere with their vision, hearing or free use of their hands or feet. Only waist length shirts with sleeves and trousers that cover the entire leg are to be worn. If flare -legged trousers are worn, the trouser bottan=- must be tied to prevent catching. The employees should wear sturdy and protective footwear. Employees shall not wear boots (other than work boots), sandals, canvas -type shoes or other shoes that have thin soles or heels that are higher than normal. In addition, the Licensee shall reguire its employees to wear personal protective equipment as specifiec by Railroad rules, regulations or Railroad officials overlooing the work at the job site. In particular, the protective equipment to be worn shall be: (1) Protective head gear that meets American National Standard -189.1 -latest revision. It is suggested that all hardhats be affixed with licensee's or subcontractor's conpany logo or name. (2) Eye protection that meets American National Standard for occupational and educational eye and r protection, 287.1 -latest revision. Additional eye protection must be provided to meet specific job situs such as welding, grinding, burning, etc.; and (3) Hearing protection which affords enough attenuation to give protection from noise levels that will be occurring on the job site. (c) All heavy equipment provided or leased by the Licensee shall be equipped with audible back --up warning devices. If in the opinion of the Railroad Representative any of Licensee's or any of its subcontractor's equip;ent is unsafe for use on the Railroad's right-of-way, the Licensee, at the request of the Railroad Representative, shall remove such equipment frau the Railroad's right-of-way. Section 9. INDEMNITY. (a) As used in this Section, "Railroad" includes other railroad companies using the Railroad'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 frau: (a) injury to or death of persons whomsoever (including the Railroad's officers, agents, and employees, the Li censee's officers, agents, and employees, as well as any other person); and (b) damage to or loss or destruction of property whatsoever (including Licensee's property, dan ge to the roadbed, tracks, equipment, or other property of the Railroad, or property in its care or custody). (b) As a major inducement and in consideration of the license and permission herein granted, the Licensee shall, to the extent of its own negligence, indemnify and hold harmless the Railroad from any loss which is due to or arises from any cause and is associated in whole or in part with the work performed under this agreement, a breach of the agreement or the failure to observe the health and safety provisions herein, or any activity or omission arising out of perform nce or nonperformance of this agreement. Section 10. RESTORATION OF PROPERTY. In the event the Railroad authorizes the licensee to take down any fence of the Railroad or in any manner move or disturb any of the other property of the Railroad in connection with the work to be performed by Licensee, then in that event the Licensee shall, as soon as possible and at Licensee's sole expense, restore such fence and Exhibit A Page 2 of 5 0122n ROE 880702 form Approved, AVP-L3w oth, aperty to the same condition as the same were in -moven or disturbed, and the Licensee shall' indemnify and employees, against and from any and all liability, loss, nature, arising frau the taking down of any fence or the before such fence was taken down or such other property was hold harmless the Railroad, its officers, agents and damages, claims, demands, costs and expenses of whatsoever moving or disturbance of any other property of the Railroad. Section II. WAIVER OF BREACH. The waiver by the Railroad of the breach of any condition, covenant or agreement herein contained to be kept, observed and performed by the Licensee shall in no way impair the right of the Railroad to avail itself of any subsequent breach thereof. Section 12. ASSIGNMENT - SUBCONTRACTING. The Licensee shall not assign, sublet or subcontract this agreement, or any interest therein, without the written consent of the Railroad and any attempt to so assign, sublet or subcontract without the written consent of the Railroad shall be void. If the Railroad gives the Licensee permission to subcontract all or any portion of the work herein described, the Licensee is and shall remain responsible for all work of subcontractors and all work of subcontractors shall be governed by the terms of this agreement. 0703n ROE 880702 '.Form Approved, AVP -Law EXHIBIT A -I Right of Entry Agreement Insurance Requirements Licensee shall, at its own sole cost and expense, procure the following kinds of insurance and promptly when due all premiums for that insurance. If it so elects, Railroad shall have the right to obtain such h insurance and Licensee shall promptly reimburse Railroad for that expense. The following insurance shall be kept in force during the life of this Agreement: General Public Liability insurance providing bodily injury, including death, personal injury and property damage coverage with a combined single limit of at least $2,000,000 each occurrence or claim and a general aggregate limit of at least $4,000,000. This insurance shall provide Broad Form Contractual Liability covering the indemnity provisions contained in this Agreement, Underground hazard, Products -Completed Operations with products -completed operation aggregate of at least $2,000,000, a separate general aggregate for the project (ISO Form CG 25 03 or equivalent), Broad Form Property Carnage, severability of interests and name Railroad as an additional insured with respect to all liabilities arising out of Licensee's obligation to Railroad in the Agreement. If coverage is purchased on a "claims made" basis it shall provide for at least a three (3) year extended reporting or discovery period, which shall be invoked should insurance covering the time period of this Agreement be cancelled. Automobile Public Liability insurance providing bodily injury and property damage with a single limit of at least $2,000,000 each occurrence or claim. This insurance shall prov liability by endorsement ISO Form CA 00 25 or equivalent covering all motor vehicles inc and non -owned, mobile equipment to the extent it may be excluded frau general liability severability of interests and name Railroad as an additional insured with respect to all arising out of Licensee's obligation to Railroad in the Agreement. combined ide contractual luding hired insurance, liabilities Worker's Compensation insurance covering the statutory liability as determined by the compensation laws of the state(s) affected by.this Agreement and Employers' Liability. Also compliance with all laws of states which require participation in 'their state workers' compensation fund. The Licensee hereby waives its right to subrogation, as respects the above insurance policy(ies), against Railroad for payments made to or on behalf of employees of _icensee or its agents and for loss of its owned or leased property or property under its care, custody and control while on or near Railroad's right-of-way or other real property. Licensee's insurance shall be primary with respect to any insurance carried by Railroad. Licensee shall furnish to Railroad certificate(s) of insurance evidencing the required coverage and endorsement(s) and upon request a.certified duplicate original of any of those policies. The insurance conpany(ies) issuing such policy(ies) shall notify Railroad in writing of any me.terial alteration including any change in the retroactive date in any "claims -made" policies or substantial reduction of aggregate limits, if such limits apply, or cancellation thereof at least thirty (30) days prior thereto. The insurance policy(ies) shall be written by a reputable insurance company or companies acceptable to Railroad or with a current Best's Insurance Guide Rating of B and Class Vil or better. Such insurance_ company shall be authorized to transact business in the state(s) affected by this Agreement. )720n ROE 880702 812193.ROE Form Approved, AVP -Law Revised:2/23/95 RIGHT OF ENTRY AGREEMENT THIS AGREEMENT is made and entered into as of the 1 st day of March, 1995, by and between UNION PACIFIC RAILROAD COMPANY, a Utah corporation (hereinafter the "Railroad"); and CITY OF YAKIMA, WASHINGTON - WASTEWATER DIVISION, DEPARTMENT OF ENGINEERING & UTILITIES, a Washington municipal corporation, of 220 E. Viola, Yakima, WA 98901; atten: Mr. Bruce R. Bates - Asst. Wastewater Supt.; tel#: (509) 575-6078 (hereinafter the "Licensee"). IT IS MUTUALLY AGREED BY AND BETWEEN THE PARTIES HERETO AS FOLLOWS: RECITALS: Railroad and Licensee have previously entered into a written agreement dated January 9, 1951, covering an easement to construct, maintain, renew and use a sewer pipeline located at or near Yakima, Washington. Said agreement is identified as Railroad's Audit number 75782. Railroad has subsequently entered into an operating agreement with the Washington Central Railroad to operate on the Yakima Branch. Licensee now desires permission to have it's contractor, Blue Sky Tree Topping Service cut, chip, & remove trees and brush from Railroad's property, in order to prevent tree root damage to the Licensee's existing sewer pipeline. The parties agree as follows: I. DEFINITION OF LICENSEE. For purposes of this agreement, all references in this agreement to the Licensee shall include the Licensee's contractors, subcontractors, officers, agents and employees, and others acting under its or their authority. Articles of Agreement Page 1 0702n CITY CONTRACT NO. C\y'C)‘ 1 II. RIGHT GRANTED; PURPOSE. The Railroad hereby grants to the Licensee 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 and have ingress to and egress from the portion of Railroad's property in the vicinity of Mile Post 95 - Yakima Branch, at or near Yakima, Washington, for the purpose of cutting, chipping, and removing trees and brush to prevent tree root damage to Licensee's existing sewer pipeline. The right herein granted to Licensee is limited to those portions of the Railroad's property specifically described herein, or designated by the Railroad representative named in Article 4. III. TERMS AND CONDITIONS CONTAINED IN EXHIBITS A AND A-1. The terms and conditions contained in Exhibits A and A- 1, hereto attached, are hereby made a part of this agreement. IV. ALL EXPENSES TO BE BORNE BY LICENSEE; RAILROAD REPRESENTATIVE. The Licensee shall bear any and all costs and expenses associated with any work performed by the Licensee, or any costs or expenses incurred by the Railroad relating to this agreement. All work performed by Licensee on Railroad's property shall be performed in a manner satisfactory to the representative local Railroad representative (hereinafter the Railroad Representative): MR PAUL WEBER - ENGR DEPT C/O WASHINGTON CENTRAL RAILROAD COMPANY 6 WEST ARLINGTON YAKIMA, WA 98907 TEL #: (509) 453-9166 EXT 118; FAX #: (509) 452-9346 V. TERM; TERMINATION. A. The grant of right herein made to Licensee shall commence on the date first herein written above, and continue until 03/31/95, unless sooner terminated as Articles of Agreement Page 2 0702n herein provided, or at such time as Licensee has completed its work on Railroad's property, whichever is earlier. Licensee agrees to notify the Railroad Representative in writing when it has completed its work on Railroad property. B. This agreement may be terminated by either party on ten (10) days written notice to the other party. VI. CERTIFICATE OF INSURANCE. A. Before commencing any work, the Licensee will provide the Railroad with a Certificate issued by its insurance carrier providing the insurance coverage required pursuant to Exhibit A-1 of this agreement in a policy which contains the following type of endorsement: "Union Pacific Railroad Company is named as additional insured with respect to all liabilities arising out of Insured's, as Licensee, performance of any work on the property of the Railroad." B. Licensee warrants that this agreement has been thoroughly reviewed by its insurance agent(s)/broker(s) and that said agent(s)/broker(s) has been instructed to procure insurance coverage and an endorsement as required herein. C. All insurance correspondence shall be directed to: Union Pacific Railroad Company, Director (atten.: J. M. Martin - File # 812193.ROE), Room 1100, 1416 Dodge Street, Omaha, Nebraska 68179. VII. PROTECTION OF FIBER OPTIC CABLE SYSTEMS. Fiber optic cable systems may be buried on Licensor'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. Prior to beginning any work, the 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 property set forth herein. If it is, the Licensee shall also comply with and be subject to the provisions contained in Section 6 of Articles of Agreement Page 3 0702n Exhibit A. VIII. ENFORCEABIL TY; CHOICE OF LAW; CHOICE OF FORUM. This agreement shall be governed, construed, and enforced in accordance with the laws of the state of Washington. Litigation arising out of or connected with this agreement may be instituted and maintained in the courts of the state of Washington only, and the parties consent to jurisdiction over their person and over the subject matter of any such litigation, in those courts, and consent to service of process issued by such courts. IX. SPECIAL PROVISIONS. APPROVAL OF WASHINGTON CENTRAL RAILRAOD IS REQUIRED : Prior to entering Railroad's property for the purposes outlined herein, Licensee shall secure the written approval, on the line provided below, of the work proposed to be performed in connection with this project from: THE WASHINGTON CENTRAL RAILROAD COMPANY 6 WEST ARLINGTON YAKIMA, WA 98907 atten: Mr. Paul Weber - Engr. Dept.; tel #: (509) 453-9166 ext. 118; fax #: (509) 452-9346. LICENSEE'S CONTRACTOR MUST SIGN CONTRACTOR'S ENDORSEMENT AND FURNISH INSURANCE CERTIFICATE : Licensee shall require it's contractor, Blue Sky Tree Topping Service, of P.O. Box 240, Tieton, WA 98947, to execute the attached Contractor's Endorsement - 812193.ROE, and to furnish top the Railroad the proof of insurance coverage required under the terms of this agreement. PAYMENT OF FEE IS REQUIRED : Licensee shall pay, and Railroad shall accept, upon the execution and return of this instrument, the nonrefundable sum of $500.00 (FIVE HUNDRED DOLLARS) to cover Railroad's cost to prepare and administrate this agreement. Articles of Agreement Page 4 0702n Flagging charges are not included in the sum recited in the preceding paragraph, and will be billed separately if any flagging is required. IN WITNESS WHEREOF, the parties hereto have executed this agreement in triplicate as of the date first herein written. ATTEST: City Clerk UNION PACIFIC RAILROAD COMPANY Federal Taxpayer I. D. # 13-6400825 By Title: Director - Contracts CITY OF YAKIMA, WASHINGTON - WASTEWATER DIVISION, DEPARTMENT OF ENGINEERING & UTILITIES By i tl e: Acting City Manager (Pursuant to ordinance, resolution, or other evidence of proper authority to execute this instrument, a copy of which shall be attached to the Railroad's original counterpart of this document.) WASHINGTON CENTRAL RAILROAD COMPANY By: Articles of Agreement Page 5 0702n Title: CONTRACTOR'S ENDORSEMENT - FILE # 812193.ROE A. As a condition to entering upon Licensor's right-of- way to perform work pursuant to this Agreement, Licensee's contractor: BLUE SKY TREE TOPPING SERVICE, of P. 0. Box 240, Tieton, WA 98947; atten: Ms. Doris Gregory - Secretary; tel# : (509) 673-5651 (hereinafter "Contractor") agrees to comply with all the terms and provisions of this Agreement relating to the work to be performed and the insurance requirements set forth in Exhibit A-1. B. Before the Contractor commences any work, the Contractor will provide the Licensor with a certificate issued by its insurance carrier providing the insurance coverage required pursuant to Exhibit A-1 in a policy which contains the following type endorsement: UNION PACIFIC RAILROAD COMPANY is named as an additional insureds with respect to all liabilities arising out of Insured's performance of work on behalf of the Licensee. C. All insurance correspondence shall be directed to: J. M. Martin, (File # 812193.ROE), Room 1100, Union Pacific Railroad Company, 1416 Dodge Street, Omaha, Nebraska 68179. Witness: BLUE SKY TREE TOPPING SERVICE By: Articles of Agreement Page 6 0702n BUSINESS OF THE CITY COUNCIL YAKIMA, WASHINGTON AGENDA STATEMENT Item No. 1 For Meeting Of 12/6/94 ITEM TITLE: Resolution Authorizing City Manager to Execute of Right of Entry Agreement for Drainage System Maintenance Along Union Pacific Railroad Right of Way SUBMITTED BY: Chris Waarvick, Wastewater Superintendent Bruce Bates, Assistant Wastewater Superintendent CONTACT PERSON/TELEPHONE: Chris Waarvick/575.6078 SUMMARY EXPLANATION: The City of Yakima owns and maintains approximately 10,000 lineal feet of 15 inch, open jointed, concrete drain line which runs from Wide Hollow Creek north to Mead Avenue. This line is prone to root blockages from russian olive and willow trees growing adjacent to the line. The drain line frequently backs up in the summer and has flooded adjacent properties and businesses. In an effort to reduce flooding and maintenance required on this line, it is important to remove the trees and annually treat the area with an herbicide to restrict their regrowth. Staff advertised for competitive bids on October 6, 1994. Blue Sky Tree Service has submitted an apparent low bid of $6,000 for the tree cutting, chipping and removal of gees along this right of way. Union Pacific requires a right of entry agreement before a contractor can gain access to cut and chip the trees growing on the Union Pacific property. The contractor must also meet the insurance coverage requirements of Union Pacific and the City of Yakima. Resolution X Ordinance Contract Other (Specify) Funding Source 476 Sewer Construction Fund APPROVED FOR SUBMITTAL: City Manager STAFF RECOMMENDATION: Approve resolution authorizing City Manager to execute right of entry agreement for tree cutting and chipping contract along Union Pacific property. BOARDICOMMISSION RECOMMENDATION: COUNCIL ACTION: UP agreement agenda 11/28/94