Resolution No. 85-103 CITY OF TIGARD, OREGON
RESOLUTION NO. 85—J61
A RESOLUTION OF THE TIGARD CITY COUNCIL APPROVING AMENDING AN AGREEMENT WITH
THE SOUTHERN PACIFIC TRANSPORTATION COMPANY FOR T14E 72nd AVENUE MAINLINE SEWER
CROSSING, EXTENDING THE EXPIRATION DATE THEREOF.
WHEREAS, this Council's dc_Sire is to cooperate ir.. c.;nstruction of railroad
crossing sewer facilities by amending an agreement with the Southern Pacific
Transportation Company to provide for an extension of time for completion of
work.
NOW, THEREFORE, BE IT RESOLVED by the Tigard City Council that:
1. The Mayor and City Recorder are hereby authorized to execute said
agreement amendment with the Southern Pacific Transportation Company
on behalf of the City of Tigard.
2. The original agreement (copy attached), and said agreement amendment
(copy also attached) provide for installation of underground
sanitary sewerage crossing facilities, establishes time limits and
the right to do work as previously proposed under the S.W. 72nd
Avenue Local Improvemi2ntt District #21 project.
PASSED: This day of Dee 1485.
Mayor — City of Tigard
ATTEST:
Deputy City Recorder — City of Tigard
(2159P)
RESOLUTION NO. 8r3—_/C)3
Page 1
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` Supplemental to
Deed Audit No. 62108 RELMIS: FD-749.43-X(N)
THIS SUPPLEMENTAL AGREEMENT, made thisla-14 day of , 1985,
by and between SOUTHERN PACIFIC TRANSPORTATION COMPANY, a Delaware corpo-
ration, herein termed "Railroad," and CITY OF TIGARD, a municipal corpora-
tion of the State of Oregon, address: P. O. Box 23397, Tigard, Oregon
97223,. herein termed "Grantee";
RECITALS:
By indenture dated January 7, 1983, Railroad granted
to Grantee the right to construct, reconstruct, maintain
and operate an eight (8) inch sewer pipeline, thereinafter
termed "structure," in, upon, along, across and beneath the
property and tracks of Railroad, at or near Cook (Tigard) ,
in the County of Washington, State of Oregon, ir> the loca-
tion more particularly shown or described in said indenture.
(
lis desired by this instrument to extend the time
in whict h Grantee is to commence construction of said structure-
AGREEMENT-
1.
tructure_AGREEMENT:1. Section 5 of said indenture is hereby amended to read as follows:
"5. The rights herein granted to Grantee shall lapse
and become void if the construction of said structure upon
said property is not commenced on or before the 1st day of
July, 1986."
2. Section 9 of said indenture is hereby amended to read as follows:
119_ As part consideration, Grantee agrees to pay Rail-
roadan amount equal to any and all assessments which may be
levied by order of any authorized lawful body against the
property of Railroad (and which may have been paid by Railroad)
to defray any part of the cost or expense incurred in connec-
tion with the construction of said structure upon said property
commenced on or before the lst day of July, 1986." r
3• Except as herein otherwise provided, all of the terms, covenants
and conditions contained in said indenture dated January 7, 1983, shall
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be and remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have caused these presents
to be executed in duplicate the day and year first herein written.
SOUTHERN PACIFIC TRANSPORTATION
COMPANY,
By
(Title)
CITY OF TIGARD,
By
Mayor
Y By . .
Clerk
At
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AWL
nasoASS!GNED
i AUDIT
D E E Dp7 I j'
LEASE
AU0Cr NO.--
.,,Ove "'Is
RELMILS: FD-749.43-X(N)
,mis INDENTURE, made this —7Vkday
1983
by and between SOUTHERN PACIFIC TRANSPORT. COMPANY, Delaware
— -
and CITY OF -rj(-'Am)' ZI
corporation of the State of Oregon, address: P. O. Box 23397, Tigard,
Oregon 97223, herein termed "Grantee";
WITNESSETH:
1. That Railroad hereby (grants to Grantee, subject to the reserva-
tions, covenants and conditions herein contained, the right to construct,
reconstruct, maintain and operate an eight (8) inch sewer pipeline, here-
inafter termed "-;LrUC'tllrc," in, upon, along, across and beneath 010
, 'ou"Ity
property and tracks )f Raill-11,11i , it Or ricar- Cook (,Pi ]ard) ,
of Washington, State of oreyon, crossing the center line of said tracks
on the
at Engineer's 327+10, Mile Post. 749.43, in the location shown
print of RailroaCi's Shasta Region Drawing No. L-5400-A dated Novomber 30,
1982, attached and made a P,11-t 1_10-rc0f-
Said structure sJ1,111 be installed in accordance with minimum require
ments of Form C. S. 1741, also attached and made a part hereof.
/70,t
{ 2. Project markers in form and size satisfactory to Railroad,
identifying the facility and its owner, will be installed and con-
stantly maintained by and at the expense of Grantee at Railroad
Property lines or such locations as Railroad shall approve. Such
markers shall be relocated or removed upon request of Railroad with-
out expense to Railroad.
Absence of markers does not constitute a warranty by Railroad
of no subsurface installations.
3. This grant is made subject and subordinate to the prior and
continuing right and obligation of Railroad, its successors and assigns,
to use all the property described herein in the performance of its duty
as a common carrier, and there is reserved unto Railroad, its successors
and assigns, the right (consistent with the rights herein granted) to
construct, reconstruct, maintain and use existing and future railroad
tracks, facilities and appurtenances and existing and future transporta-
tion, communication and pipeline facilities and appurtenances in, upon,
over, under, across and along said property.
4. This grant is made subject to all licenses, leases, easements,
restrictions, conditions, covenants, encumbrances, liens and claims of
title which may affect said property and the word "grant," as used here-
in, shall not be construed as a covenant against the existence of any
thereof.
C; 5. The rights herein granted to Grantee shall lapse and become void
e
f the construction of said structure upon said property is not commenced
within one (1) year from the date first herein written.
E. Grantee shall bear the entire cost and expense of constructing,
reconstructing and maintaining said structure upon said property. Grantee
agrees that all work upon or in connection with said structure shall be
done at such times and in such manner as not to interfere in any way
whatsoever with the operations of Railroad. The plans for and the con-
struction or reconstruction of said structure shall be subject to t":!
approval of Railroad.
Grantee acrees to reimburse Railroad for the cost and expense to
Railroad of furnishing any materials or performing any labor in connec-
tion with the construction, reconstruction, -maintenance and removal of
said structure, including, but not limited to, the installation and
removal of such falsework and other protection beneath or along Railroad's
tracks, and the furnishing of such watchmen, flagmen and inspectors os
Railroad deems necessary.
7. In the event Railroad shall at any time so require, Grantee, at
Grantee' s expense, shall reconstruct, alter, makes changes in the loca-
tion of said structure or otherwise improve said structure upon receipt
of written notice from Railroad so to do.
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8, Grantee shall, at its expense, comply with all applicable laws,
regulations, rules and orders, regardless of when they become or became
effective, including without limitation those relating to health, safety,
noise, environmental protection, waste disposal, and water and air
quality, and furnish satisfactory evidence of such compliance upon re-
quest of Railroad.
Should any discharge, leakage, spillage, emission, or pollution of
any type occur upon or from the premises due to Grantee's use and occu-
pancy thereof, Grantee, at its expense, shall be obligated to clean
the premises to the satisfaction of Railroad and any governmental body
having jurisdiction thereover.
Grantee agrees to indemnify, hold harmless and defend Railroad against
all liability, cost and expense (including without limitation any fines,
penalties, judgments, litigation costs and attorney fees) incurred by
Railroad as a result of Grantee's breach of this section, or as a result
of any such discharge, leakage, spillage, emission or pollution, regard-
less of whether such liability, cost or expense arises during the 1 ife
of this indenture unless su,:h liability, cost or expense is proximately
caused solely by the active negligence of Railroad.
9. As part consideration, Grantee agrees to pay Railroad an amount
equal to any and all assessments which may be levied by order of any
authorized lawful body against the property of Railroad (and which may
have been paid by Railroad) to defray any part of the cost or expense
incurred in connection with the construction of said sz-ructure upo n said
property commenced within one (1) year from the date first herein written.
10. Grantee, its agents and employees subject to provisions hereof,
shall have the privilege of entry on said property for the purpose of
constructing, reconstructing, maintaining and making necessary repairs
to said structure. Grantee agrees to give Rai'.road five (5) days' writ-
ten notice prior to commencement of any work on said structure except
emergency repairs,' in which event Grantee shall notify Railroad' s author-
ized representative by phone. Grantee agrees to ;seep said property and
-ail'_ structure in good and safe condition, free from waste, so far, as
affected by rante 's operations, to the satisfaction of Railroad_ if
e
Grantee fails to keep said property and said structure in a good a nd sale
condition, free from waste, then Railroad may ?erform the necessary wort{
at the expense of Grantee, which expense Grantee agrees to pay to Railroad
upon demand.
11. in the event any work upon or in connection with said structure
or its appurtenances, to be done upon or adjacent to the tracks a zd prop-
erty of Railroad, should be let to a contractor by Grantee, such Fork
shall not be begun until such contractor shall have first entered into
an agreemenr aith Railroad, satisfactory to Railroad, and indemnifying
Railroad from and against all claims, liability, cost and expense crowing
out of the rerformance of the work to be done by such contractor.
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12. Insofar as it lawfully may, Grantee agrees to release and in-
demnify Railroad, its officers, employees, agents, successors and assigns,
from all claims, liability, cost and expense howsoever same may be
caused, including reasonable attorney fees, for loss of or damage to
Property and for injuries to or death of persons arising out of the
cons tru-tion, reconstruction, maintenance, presence, use or removal of
said structure, regardless of any negligence or alleged negligence on
the part of Railroad employees.
The word "Railroad," as used in this section, shall be construed
to include, in addition to Railroad, the successors, assigns and affili-
ated companies of Railroad and any other railroad company that may be
lawfully operating upon and over the tracks crossing or adjacent to
said structure, and the officers and employees thereof.
13. Should Grantee, its successors or assigns, at any time abandon
the use of said property, or any part thereof, or fail at any time to
usethe same for the purpose contemplated herein for a continuous period
of one (1) year, the -right hereby giver_ shall cease to the extent of the
useso abandoned or discontinued, and Railroad shall at once have the
right, in addition to, but not in qualification of, the rights herein-
above reserved, to resume exclusive possession of said property or the
part ther_of the use of which is so discontinued or abandoned.
Upon to,nination of the rights and privileges hereby granted, Gran-
tee, at its own cost and expense, agrees to remove said structure from
said property and restore said property as nearly as practicable to the
same state and condition in which it existed prior to the construction
of said structure. Should Grantee in. such event fail, neglect or refuse
to remove said structure and restore said property, such removal and
restoration may be performed by Railroad, at the expense of Grantee,
which expense Grantee agrees to pay to Railroad upon demand, or Railroad
*nay, at its option, assume ownership of said structure.
14. This indenture shall inure to the benefit of and be binding
upon the successors and assigns of the parties hereto.
IN WITNESS WHEREOF, the parties hereto have caused these presents
to be executed in duplicate the day and ve=_r first herein. written.
SOUTHERN PACIFIC TRANSPORTATION CITY OF TIGARD,
COMPANY,
By
(Title) t,;,: -:, ^_ac � Mayor
Attest: By /e. c-iu Z/� f -
Assistant Secretary Clerk
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