HomeMy WebLinkAbout2014-123 Agrmt - Central OR Pacific Railroad - No CORP 140501
Permit No. COPP 140501
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OCCUPANCY LICENSE AGREEMENT
This Agreement ("Agreement") made this t6(6- b(6- day o 2014, by and between Central Oregon & Pacific
Railroad, Inc.("LICENSOR"), whose address is CIO G,, e & Wyoming Railroad Services, Inc., 13901 Sutton Park Dr.
South, Suite 160, Jacksonville, FL 32224, and City of Ashland ("LICENSEE"), whose address is City Hall 20 East Main,
Ashland, OR 97520.
WHEREAS, LICENSEE has submitted a written request or application to LICENSOR requesting permission to
occupy LICENSOR'S property located at or near the location specified in Section I below; and
WHEREAS, LICENSOR is willing to grant to LICENSEE the limited right to occupy LICENSOR'S property for the
limited purpose described herein.
NOW THEREFORE, in consideration of these promises, the Agreement herein, and other good and valuable
consideration the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
1. LICENSOR hereby conveys to LICENSEE a license ("Occupancy") to operate upon, along or across LICENSOR'S
property as indicated below:
A. ( ) above ground ( x ) below ground
B. ( cable tv wireline ( ) fiber optic wireline ( ) communications wireline ( x ) power wireline
located at or near Mile Post Mile Post 730.706, Siskiyou, Subdivision, Latitude: 42.213316, Longitude: -122.730346, at or
near Ashland, County of Jackson, State of OR. Nothing herein contained shall be construed as conferring any property right
on LICENSEE.
2. Said Occupancy to be located and described as follows:
Underground distribution power wireline 13kV 3 conductor including necessary appurtenances, structures and other related
fixtures, equipment, marker posts or electric power ("LICENSEE'S Facilities"), placed as shown on Exhibit A attached
hereto and made a part hereof. LICENSEE'S Facilities are subordinated to all matters of record. LICENSOR reserves
the right to use the area three (3) feet below ground level and to enter LICENSEE'S Facilities for construction and
maintenance of LICENSOR'S property.
3. THE UNDERSIGNED AGREES that the continuation of the Occupancy and use herein shall be subject to the conditions
specified herein.
4. Said Agreement and Occupancy is granted contingent upon payment to LICENSOR of an annual fee of $600. LICENSEE
shall also submit a one-time agreement processing fee of $1000, engineering review fee of $1500 and a contractor right of
entry fee of $750, which shall be covered by a separate agreement known as CONTRACTOR RIGHT OF ENTRY LICENSE
AGREEMENT. LICENSOR reserves the right to adjust the annual fee on each anniversary date of this Agreement, or at such
other times as conditions warrant. Billing or acceptance by LICENSOR of any annual fee shall not imply a definite term or
otherwise restrict either party from canceling this Agreement as herein provided.
5. This Agreement or Occupancy herein granted may not be transferred,, assigned or sublet to another party not a signatory
hereto without the prior written approval of LICENSOR. Said approval by LICENSOR, subject to LICENSEE'S satisfaction of
applicable transfer of rights or assignment fees in effect at that time, shall not be unreasonably withheld.
6. LICENSOR shall not be responsible for any damage to LICENSEE'S Facilities at any time while this Agreement is in
effect.
7. (a) LICENSEE HEREBY AGREES TO INDEMNIFY, SAVE, HOLD HARMLESS AND DEFEND LICENSOR AND
ITS PARENT, AFFILIATES AND EACH OF THEIR RESPECTIVE DIRECTORS, OFFICERS, AGENTS AND
EMPLOYEES FROM AND AGAINST (1) INJURY TO OR DEATH OF ANY PERSON OR PERSONS WHOMSOEVER,
INCLUDING BUT NOT LIMITED TO THE AGENTS, EMPLOYEES OR CONTRACTOR(S) OF THE PARTIES
HERETO, AND (11) THE LOSS OR DAMAGE TO ANY PROPERTY WHATSOEVER, INCLUDING PROPERTY
CLAIMS, DEMANDS, SUITS, JUDGMENTS OR EXPENSES INCURRED IN CONNECTION THEREWITH,
RESULTING FROM OR ARISING OUT OF THE ACTS OR OMISSIONS OF LICENSEE, ITS AGENTS, EMPLOYEES
Permit No. CORP 140501
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OR CONTRACTOR(S), OR RESULTING FROM, ARISING OUT OF, OR OCCURRING IN CONNECTION WITH TI-IE
ENTRY OR PRESENCE OF LICENSEE, ITS AGENTS, EMPLOYEES OR CONTRACTOR(S) ON THE PROPERTY, OR
RESULTING FROM, ARISING OUT OF, OR OCCURRING IN CONNECTION WITH THE PERFORMANCE OR
EXECUTION OF ANY WORK PERFORMED UNDER THIS AGREEMENT OR INCIDENTAL. THERETO, INCLUDING
BUT NOT LIMITED TO THE USE AND OCCUPANCY OF LICENSEE'S FACILITIES BY LICENSEE, ITS
PERMITTEES, INVITEES OR ANY OTHER PERSON OR ENTITY.
(b) THE PARTIES ACKNOWLEDGE THAT THE USE OF LICENSER'S PREMISES IS FOR THE SOLE
CONVENIENCE OF LICENSEE AND THAT LICENSOR SHALL HAVE NO DUTY TO LICENSEE, ITS OFFICERS,
EMPLOYEES, AGENTS OR CONTRACTORS TO PROVIDE A REASONABLY SAFE PLACE IN WHICH TO WORK,
TO PROVIDE ADEQUATE OR SAFE METHODS AND EQUIPMENT FOR 'T'HEIR WORK OR TO INSPECT OR
MAINTAIN LICENSEE'S FACILITIES FOR SAID SAFE METHODS AND WORK EQUIPMENT NOR 1'O GIVE ANY
WARNINGS OR OTHER NOTICES TO LICENSEE'S EMPLOYEES OR INVITEES REGARDING SAFETY EITHER OF
LICENSEE'S FACILITIES AND RELATED WORKPLACE OR LICENSER'S PROXIMATE RAILROAD OPERATIONS
AND THAT ALL SUCH DUTIES SHALL BE ASSUMED BY LICENSEE WHO FURTHER AGREES TO DEFEND AND
HOLD HARMLESS LICENSOR, ITS PARENT AND AFFILIATES FROM ANY AND ALL CLAIMS ALLEGING ANY
FAILURE TO PERFORM SAID DUTIES.
(c) IN NO EVENT UNDER THIS AGREEMENT WILL LICENSOR HAVE ANY LIABILITY FOR INDIRECT,
SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES. THE TERM "LICENSOR" AS USED IN THIS
SEC'T'ION 7 SHALL INCLUDE THE SUCCESSORS, ASSIGNS, AND AFFILIATED COMPANIES OF LICENSOR.
8. LICENSEE agrees to comply with the INSURANCE REQUIREMENTS, attached hereto as Exhibit C and
made a part hereof, and shall provide the required Certificate of Insurance to LICENSOR simultaneous to the
execution of this Agreement.
9. If required by LICENSOR. LICENSEE at its sole cost and expense, shall furnish LICENSOR with a survey drawing,
showing the final exact location of said Occupancy and LICENSEE'S Facilities. The survey drawing shall indicate
LICENSER'S survey valuation station which said installation is located, and/or the position of LICENSEE'S Facilities in
relation to the center line of the track and/or the centerline of the closest public street crossing said track(s). Said survey
drawing to be attached to this Agreement as Exhibit B and made a part hereof.
10. LICENSEE'S Facilities shall be installed to the satisfaction and approval of LICENSOR'S Engineer and all costs of
LICFNSOR'S Engineer and other technicians or professional consultants as may be required from time to time shall be borne
by LICENSEE.
11. LICENSEE hereby agrees to reimburse LICENSOR for any and all expenses LICENSOR may incur or be subjected to, or .
in consequence of, the planning, negotiation, installation, construction, location, changing, alteration, relocation, operation or
renewal of said l7acilitics, within thirty (30) days after receipt of LICENSOR'S invoice for payment.
12. In the event LICENSEE desires to make changes in the physical or operational characteristics of said Occupancy,
LICENSEE shall first obtain in writing the consent and approval of LICENSOR.
13. Any entry onto LICENSOR'S property by LICENSEE its employees, agents, representatives or contractors after
LICENSEE'S Facilities have initially been constructed shall occur only upon obtaining LICENSEE'S consent pursuant to
Section 12 herein, if required, and entering into an additional CONTRACTOR RIGHT OF ENTRY LICENSE AGREEMENT
with LICENSOR prior to entry. LICENSEE agrees that any physical or operational changes that LICENSEE desires to make
shall be made at LICENSE'E'S sole risk, cost and expense and subject to all the terms, covenants conditions and limitation of
this Agreement. Any "flagging" services determined at LICENSOR's sole discretion to be necessary shall be at LICENSEE'S
sole cost and expense. -
14. In the case of emergency repairs, LICENSEE shall contact LICENSOR by calling LICENSOR's emergency number
at (866) 527-3499 in order to obtain LICENSER'S consent prior to entering LICENSOR's property.
15. This Agreement shall continue in force indefinitely from and after the date hereof, subject, however, to the right of either
party to terminate this Agreement as to the Occupancy or LICENSEE'S Facilities, or any part of LICENSEE'S Facilities, at any
Permit No. CORP 140501
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time, upon giving the other parry thirty (30) days' notice in writing of its desire to terminate this Agreement, and indicating in
said notice the extent of said facilities and facilities to which such termination shall apply. Notwithstanding the foregoing, in
the event that (i) the use of the Occupancy as set forth above in Sections I and 2 is materially changed, (ii) LICENSEE'S
Facilities are removed, or (iii) LICENSEE defaults on a material obligation hereunder and such default is not cured within 30
days after receipt of written notice from LICENSOR describing such default (or such longer cure period as determined in
LICENSER'S sole discretion), this Agreement shall automatically terminate. When this Agreement shall be terminated as to
LICENSEE'S Facilities, or as to any part thereof, LICENSEE within thirty (30) days' after the expiration of the time stated in
said termination notice, agrees at LICENSEE'S own risk and sole expense to remove LICENSEE'S Facilities from the property
of LICENSOR, or such portion thereof as LICENSOR shall require removed, and to restore LICENSOR premises and property
to a neat and safe condition to the satisfaction of LICENSER'S designated Engineer or Representative, and if LICENSEE shall
fail to do so within said time, LICENSOR shall have the right, but not the duty, to remove and restore the same, at the risk and
expense of LICENSEE.
16. LICENSOR may, at LICENSER'S sole discretion, during the removal of LICENSEE'S Facilities in accordance with
Section 15, require LICENSEE to conduct an environmental appraisal and report of the property formerly occupied by
LICENSEE'S Facilities at LICENSEE'S sole cost and expense. All reports shall be prepared by a LICENSOR approved
environmental consultant, to determine if LICENSER'S property has been environmentally impacted by said Occupancy. All
environmental reports, which are prepared subject to this clause, shall be immediately available to LICENSOR by LICENSEE
and shall be treated as confidential information by the parties unless disclosure of such environmental reports are required by
law. This clause shall survive termination of this Agreement.
17. Execution of this Agreement shall supersede and/or cancel, as of the date, first above written, any and all previous
agreements, if any, related to the Occupancy and use herein described, which may exist between the parties or their
predecessors.
18. (a) LICENSEE shall comply with any and all laws, statutes, ordinances, rules, regulations, orders, decisions (collectively,
the "Laws"), issued by any federal, state or municipal governmental body or agency established thereby ("Authority"), relating
to the construction, maintenance, and use of the LICENSEE's Facilities by LICENSEE and any the use of LICENSER'S
property.
(b) LICENSEE, in its Occupancy as granted herein, shall not create or permit any condition on LICENSOR's property that
could present a threat to human health or to the environment. LICENSEE shall at all times be in full compliance with all Laws,
present or future, set by any Authority, including but not limited to any, environmental laws concerning water quality (surface
of underground), hazardous substances and hazardous waste(s).
(c) Should any discharge, leakage, spillage, emission or pollution of any type occur or arise on LICENSOR's Property as a
result of LICENSEE'S presence, use, operation or exercise of the rights granted herein, LICENSEE shall immediately notify
LICENSOR and shall, at LICENSEE'S expense, be obligated to clean all property affected thereby, whether owned or
controlled by LICENSOR or any third persons, to the satisfaction of LICENSOR (insofar as the property owned or controlled
by LICENSOR is concerned) and any governmental body having jurisdiction in the matter. LICENSOR may, at is option, clean
the property; if LICENSOR elects to do so, LICENSEE shall pay LICENSOR the reasonable cost of such cleanup promptly
upon the receipt of a bill therefor.
(d) LICENSEE AGREES TO RELEASE, INDEMNIFY AND DEFEND LICENSOR AND ITS PARENT AND
AFFILIATES FROM AND AGAINST ALL LIABILITY, COST AND EXPENSE (INCLUDING, WITHOUT LIMITATION,
ANY FINES, PENALTIES, JUDGMENTS, LITIGATION COSTS AND ATTORNEY FEES) INCURRED BY LICENSOR
AS A RESULT OF LICENSEE'S BREACH OF THIS SECTION 18 REGARDLESS OF LICENSOR'S NEGLIGENCE,
EXCEPT TO THE EXTENT ANY SUCH LIABILITIES, COSTS AND EXPENSES ARE SOLELY CAUSED BY THE
GROSS NEGLIGENCE OF LICENSOR, ITS OFFICERS, AGENTS, INVITEES OR EMPLOYEES.
19. This Agreement shall be governed by and construed under the laws of the State of OR, without regard to the choice of law
provisions thereof.
20. To the maximum extent possible, each provision of this Agreement shall be interpreted in such
manner as to be effective and valid under applicable law, but if any provision of this Agreement 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 Agreement.
Permit No. CORP 140501
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21. This Agreement may be executed in multiple counterparts, each of which shall, for all purposes, be
deemed an original but which together shall constitute one and the same instrument, and counterparts of this Agreement may
also be exchanged via electronic facsimile machines and any electronic facsimile of any party's signature shall be deemed to be
an original signature for all purpose.
(Signature Page Follows)
Permit No. CORP 140501
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THIS AGREEMENT IS hereby declared to be binding upon the parties hereto.
WITNESS WHEREOF, the undersigned have hereunto set their hand and seals this /O day of
2014.
WITNESS LICENSOR
Central Oregon & Pacific Railroad, Inc.
by: Tony D. Long
t/ its: Vice President
Signe . /
WITNESS LICENSEE
City of Ashland
by: Okg6 KA,,3t-~6Z
its: CITY ADnlats~R/~ 02
OFFICIAL SEAL
DIANA R SHIPLET Signed:
NOTARY PUBLIC-OREGON
COMMISSION NO. 454135
MY COMMISSION EXPIRES NOVEMBER 28, 2014
A ''D AS TO FORM
Asl, A Ity A rrley
Dat
Permit No. CORP 140501
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EXHIBIT A
LICENSEE'S FACILITIES
Permit No. CORP 140501
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EXHIBIT B
SURVEY
Permil No. CORP 140501
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EXHIBIT C
INSURANCE REQUIREMENTS
(a) The Licensee shall, at its own cost and expense, prior to entry onto Licensor's Property or the
commencement of any work pursuant to this Agreement, procure and thereafter maintain throughout the term of
this Agreement the following types and minimum amounts of insurance:
(i) The Licensee shall maintain Public Liability or Commercial General Liability
Insurance ("CGL"), including Contractual Liability Coverage and CG 24 17 "Contractual Liability
- Railroads" endorsement, covering all liabilities assumed by the Licensee under this Agreement,
without exception or restriction of any kind, with a combined single limit of not less than Two
Million Dollars ($2,000,000) for Bodily Injury and/or Property Damage Liability per occurrence,
and an aggregate limit of not less than Six Million Dollars ($6,000,000) per annual policy period.
Such insurance policy shall be endorsed to provide a Waiver of Subrogation in favor of the
Licensor and its affiliates and shall name the Licensor and its affiliates as Additional
Insured. An Umbrella or Excess policy may be utilized to satisfy the required limits of liability
under this section, but must "follow form" and afford no less coverage than the primary policy.
(ii) The Licensee shall maintain Commercial Automobile Insurance for all owned,
non-owned and hired vehicles with a combined single limit of not less than One Million Dollars
($1,000,000) for Bodily Injury and/or Property Damage Liability per occurrence. Such insurance
policy shall be endorsed to provide a Waiver of Subrogation in favor of the Licensor and its
affiliates and shall name the Licensor and its affiliates as Additional Insured.
(iii) The Licensee shall maintain Statutory Workers' Compensation and Employers'
Liability Insurance for its employees (if any) with minimum limits of not less than One Million
Dollars ($1,000,000) for Bodily Injury by Accident, Each Accident; One Million Dollars
($1,000,000) for Bodily Injury by Disease, Policy Limit; One Million Dollars ($1,000,000) for
Bodily Injury by Disease, Each Employee. Such insurance policy shall be endorsed to provide a
Waiver of Subrogation in favor of the Licensor and its affiliates, if applicable.
(iv) Prior to any construction project within 50' of the railroad track, the Licensee shall
purchase Railroad Protective Liability Insurance naming the Railroad as the named insured with limits of
Two Million Dollars ($2,000,000) each occurrence and Six Million Dollars ($6,000,000) aggregate limit.
The policy shall be issued on a standard ISO form CG 00 35 12 03, or, if available, obtain such coverage
from the Railroad.
(b) The following general insurance requirements shall apply:
(i) The specified insurance policies must be effected under standard form policies
underwritten by insurers licensed in the state where work is to be performed, and carry a minimum
Best's rating of "A-" and size "Class VII" or better. The Licensor reserves the right to reject as
inadequate any insurance coverage provided by an insurer that is rated less than the ratings
specified in this section.
(ii) All coverages shall be primary and non-contributory to any insurance
coverages maintained by the Licensor and its affiliates.
(iii) All insurance policies shall be endorsed to provide the Licensor with thirty (30)
days prior written notice of cancellation, non-renewal or material changes.
Permit No. CORP 140501
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(iv) The Licensee shall provide the Licensor with certificates of insurance evidencing
the insurance coverages, terms and conditions required prior to commencement of any activities on
or about the Property. Said certificates should reference this Occupancy License Agreement by
agreement date and description and shall be furnished to the Licensor at the following address, or
to such other address as the Licensor may hereafter specify:
Central Oregon & Pacific Railroad, Inc.
C/O Genesee & Wyoming Railroad Services, Inc.
13901 Sutton Park Drive South, Suite 160
Jacksonville, FL 32224
(v) If any policies providing the required coverages are written on a Claims-Made
basis, the following shall apply:
(1) The retroactive date shall be prior to the commencement of the
work;
(2) The Licensee shall maintain such policies on a continuous basis;
(3) If there is a change in insurer or policies are canceled or not
renewed, the Licensee shall purchase an extended reporting period of not less than
three (3) years after the contract completion date; and
(4) Licensee shall arrange for adequate time for reporting of any loss
under this Agreement.
(c) The Licensor may require the Licensee to purchase additional insurance if the Licensor
reasonably determines that the amount of insurance then being maintained by the Licensee is insufficient
in light of all relevant factors. If the Licensee is required to purchase additional insurance, the Licensor
will notify the Licensee. Failure of the Licensee to comply within thirty (30) days shall be considered a
default subject to termination of the Agreement.
(d) Furnishing of insurance by the Licensee shall not limit the Licensee's liability under this
Agreement, but shall be additional security therefore.
(e) The above indicated insurance coverages shall be enforceable by any legitimate claimant after the
termination or cancellation of this Agreement, or any amendment hereto, whether by expiration of time, by
operation of law or otherwise, so long as the basis of the claim against the insurance company occurred during the
period of time when the Agreement was in effect and the insurance was in force.
(f) Failure to provide the required insurance coverages or endorsements (including contractual
liability endorsement) or adequate reporting time shall be at Licensee's sole risk.
(g) If contractors are utilized, the Licensee agrees to require all such contractors to comply with the
insurance requirements of this Exhibit C and sign a separate right of entry agreement, as required by the
Agreement.
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