Tri-Met - Canterbury Lane, Right of Way TRI@MET
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Dennis Koellermeier
Public Works Director
City of Tigard Public Works
13125 SW Hall Blvd.
Tigard, OR 97233
Ron Polluconi
Technical Services Supervisor
WCCCA
P.O. Box 6375
Beaverton, OR 97007
Re: Right of Entry— 10310 SW Canterbury Lane, Tigard
Dear Dennis and Ron:
Enclosed for each of you is a fully executed original of the above-referenced document.
We appreciate your efforts in getting it signed this week.
Very truly yours,
Ta ara H. Lewis
Deputy General Counsel
Enclosure
Tri-County Metropolitan Transportation District of Oregon 9 710 NE Holladay Street,Portland,Oregon 97232 • 503-238-RIDE • TTY 503-238-5811 • trimet.org
RIGHT OF ENTRY
PROJECT: Washington County Commuter Rail Project
This Agreement is made between the City of Tigard, Tigard Water District, City of Durham, and
City of King City as Tenants In Common ("Tenants In Common"), Washington County Consolidated
Communications Agency ("WCCCA") and the Tri-County Metropolitan Transportation District of
Oregon ("TriMet") this '2-0{day of Oece:{fit , 2007. The purpose of this Agreement is to
memorialize understandings between the parties concerning TriMet's authority to enter upon certain
property owned by Tenants In Common and certain property leased to WCCCA for the purpose of
constructing improvements related to the Washington County Commuter Rail Project.
The Property subject to this Right of Entry is located at 10310 SW Canterbury Lane in Tigard,
Washington County, Oregon (the "Property"). The Property is subject to a Communications Facility Site
Lease dated December 13, 2005 The parties to this Agreement agree that the terms and conditions of
the 2005 Lease remain in effect and that this Agreement shall be interpreted as being consistent with
those terms and conditions.
The parties agree as follows:
1. GRANT OF RIGHT OF ENTRY. Tenants In Common and WCCCA grant to TriMet and its
authorized employees, agents, contractors and representatives the right to enter upon the Property for the
purposes of constructing improvements related to the Washington County Commuter Rail Project,
subject to the limitations set forth in this Agreement. This work is necessary to the project and is not
being performed for purposes of property acquisition. This Right of Entry shall be in full force and
effect until the earlier of the expiration of one year, terminating on October 30, 2008, or such time as
Tenants In Common, WCCCA and TriMet execute a sublease authorizing TriMet to sublease a portion of
the Property from WCCCA.
TriMet shall, at all reasonable times, have the right to enter the Property to install, maintain, operate,
control and remove any and all of TriMet's equipment and other personalty located on the Property
necessary for the specific use agreed to herein. This Agreement does not include with it the right to
occupy, reside or otherwise stay at the Property for purposes or periods longer than reasonably necessary
to accomplish the use.
It is understood by TriMet that the Tenants in 'Gemrnen and `All--CCA �-;il': conLinue to use and occupy the
Property and they shall have the additional right to use the Property for other purposes as they deem
necessary As such, TriMet understands that its employees will be subject to the direction of the Tenants
in Common and of WCCCA in its use and occupancy of the Property, and is further subject to the terms
of the applicable regulations and policies concerning the use of the Property. The Tenants in Common
and WCCCA may also come upon the Property, at all times they deem appropriate to inspect the
operation of TriMet for consistency with the terms of this Agreement.
2. ACTIVITIES AUTHORIZED PURSUANT TO RIGHT OF ENTRY.
a. TriMet will be allowed to access the Property for the purpose of installing one antenna on the
WCCCA tower structure, and installation of related equipment for operation of the antenna No
other use of the Property is permitted without obtaining the prior written permission of Tenants
in Common and WCCCA. Further, in connection with the permitted use, TriMet agrees not to
bring onto the Property any substance, matter, medium or material deemed to be a "Hazardous or
Toxic Material" as defined below, excepting those substances or matters which may be necessary
for the normal and permitted use of the Property consistent with this Agreement.
b. TriMet will install its antenna and related equipment in accordance with all applicable
regulations, WCCCA policies, and including Motorola R56 standards. TriMet may not operate
its antenna or equipment until the parties agree to a sublease as identified in Paragraph 1 herein.
If agreement on material terms of a sublease agreement has not been reached prior to expiration
of this Agreement, TriMet shall within 30 days of expiration of this Right of Entry remove its
antenna and equipment at its sole expense, and return the Property to its original condition prior
to TriMet's activities pursuant to this Agreement.
c. TriMet will obtain any required land use or other regulatory approvals required for its
installation of the antenna and equipment on the Property, at its sole expense, and prior to
installing any equipment or mobilizing equipment or personnel on the Property to make its
improvements to the Property pursuant to this Agreement.
3. INJURY TO OTHER PROPERTY OF TFNANTS IN COMMON Or, NA/CCCA. i"-d11 work on the
Property shall be performed to a workmanlike manner so as to minimize disturbance to any land or
improvements, or interest therein, owned by the Tenants In Common or WCCCA adjacent or proximate
to the Property. Neither Tenants In Common nor WCCCA waive any rights to compensation for physical
injury or damage to such other property as may arise out of or be caused by the work performed on the
Property under this Agreement.
4. INDEMNIFICATION. Within the limits of the Oregon Constitution and the Oregon Tort Claims
Act, codified at ORS 30 260 through 30.300, TriMet shall hold harmless, indemnify and defend the
Tenants in Common and WCCCA, their officers, employees and agents from and against all claims,
demands, penalties, and causes of action of any kind or character relating to or arising from this
Agreement (including the cost of defense thereof, including attorney fees) in favor of any person on
account of personal injury, death, damage to property, or violation of law, which arises out of, or results
from, the negligent acts, intentional acts, willful misconduct or omissions of the indemnitor, its officers,
employees, contractors, or agents acting within the scope of their employment or duties.
In addition to the foregoing, TriMet agrees to indemnify, hold harmless and defend the Tenants in
Common and WCCCA for any and all damages, fines, penalties, remediation costs or other charges
alleged to or arising from the violation of any Environmental Laws by TriMet or its contractors,
employees and agents. As used in this section, the term "Environmental Laws" includes any all federal,
City, or local statutes, rules, regulations or ordinances either now in existence or as may be adopted
and/or enforced :n the future regulating the use or possession of"Hazardous or Toxic Substances" As
used in this Agreement, the term "Hazardous or Toxic Substances" means such material, media,
substances (be they in solid, liquid or gaseous state) which is or may be deemed injurious to plant, animal
or human health.
5 INSURANCE. Insurance requirements set forth below do not in any way limit the amount or scope
of liability of TriMet under this Agreement. The amounts listed indicate only the minimum amounts of
insurance coverage the Tenants in Common and WCCCA will accept. TriMet may, upon providing
acceptable evidence of self-insurance, self-insure the coverages identified herein.
a. Certificates; Notice of Cancellation. On or before the Effective Date, TriMet will provide
Tenants in Common and WCCCA with certificates of insurance establishing the existence of
all insurance policies required under this Section.
b. Additional Insured. The Tenants in Common, their officers, employees and agents and
WCCCA shall be named as additional insureds with respect to this agreement in each
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required policy and, for purposes of damage to the Property, as a loss payee. Such insurance
shall not be invalidated by any act,neglect or breach of contract by TriMet.
c. Primary Coverage. The required policies shall provide that the coverage is primary, and will
not seek any contribution from any insurance or self-insurance carried by the Tenants in
Common or WCCCA.
d. Company Ratings. All policies of insurance must be written by companies having an A.M
Best rating of "A-VII" or better, or equivalent. The Tenants in Common may, upon thirty
(30) days written notice to TriMet, require TriMet to change any carrier whose rating drops
below an A-VII rating.
e. Required Insurance. At all times during this Agreement, TriMet shall provide and maintain
the following types of coverage:
(1) General Liability Insurance Coverage shall be in an amount of not less than ONE
MILLION DOLLARS ($1,000,000) combined single limit per occurrence for bodily
injury and property damage for all coverage specified herein.
(2) Automobile Liability Insurance TriMet or its contractor shall maintain an
occurrence form automobile liability policy insuring TriMet and the Tenants in
Common and WCCCA against liability for damage because of bodily injury, death,
or damage to property, including loss of use thereof, and occurring in any way
related to the use, loading or unloading of TriMet's owned, hired and non-owned
vehicles on and around the Property Coverage shall be in an amount if not less than
ONE MILLION DOLLARS ($1,000,000) combined single limit per occurrence.
(3) Workers' Compensation Insurance TriMet or its contractors shall maintain in force
Workers' Compensation insurance for all of its subject employees under the Oregon
Workers' Compensation Law. This shall include Employer's Liability Insurance
with coverage limits of not less than $100,000 each accident.
6 LAW OF OREGON. This Agreement shall be governed by the laws of the State of Oregon The
parties shall negotiate in good faith to resolve any dispute arising out of this Agreement. If the parties are
unable to resolve any dispute within fourteen (14) calendar days, the parties are free to pursue any legal
remedies that rnav be available. Ary litigation bz�twcen the partes arising ander this Agreument or out of
work performed under this Agreement shall occur, if in the state courts, in the Washington County Circuit
Court, and if in the federal courts, in the United States District Court for the District of Oregon located in
Portland.
7. SUBCONTRACTING; NO ASSIGNMENT. Tenants In Common and WCCCA acknowledge that
TriMet may intend to contract or subcontract its work under this Agreement, in whole or in part. Tenants
In Common and WCCCA agree to TriMet's contracting or subcontracting and no specific approval of
TriMet's contractors or subcontractors is required. TriMet shall require any contractor or subcontractor
to agree, as to the portion contracted or subcontracted, to fulfill all applicable obligations of TriMet as
specified in this Agreement.
This Agreement and the rights granted hereunder may not be assigned or transferred to a third party
without the express prior written permission of the Tenants in Common and WCCCA.
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8 SEVERABILITY. If any part of this Agreement is adjudged void, that determination does not
affect the validity or operation of any other part which in itself is valid, if the remaining parts of the
Agreement would then continue to conform with the requirements of applicable law and the intent of this
Agreement as set forth in the Recitals
9. NO WAIVER; AMENDMENTS IN WRITING. No waiver, consent or change of terms of this
Agreement shall bind either party unless it is in writing and signed by both parties. This waiver, consent
or change is effective only for the specific instance that it is made
10 WARRANTY OF AUTHORITY. Each party represents that the person signing this Agreement on its
behalf has authority to do so and to bind that party to these terms.
11. NOTICES. All notices, requests, demands or other communications provided for or permitted or
required by this Agreement shall be deemed given and received upon the earlier of actual delivery in
writing to the following address or three (3) days after such shall he deposited .n the United States Mall,
postage paid by registered or certified mail, return receipt requested, addressed as follows.
Tenants in Common: Dennis Koellermeier, Public Works Director
City of Tigard Public Works
13125 SW Hall Blvd.
Tigard, OR 97233
WCCCA Director
WCCCA
P.O. Box 6375
Beaverton, OR 97007
TriMet Real Property Manager
TriMet
710 NE Holladay Street
Portland, OR 97232
IN WITNESS WHEREOF, the parties hereto have set their hands on the day and year first written
above.
TRI-COUNTY METROPOLITAN TENANTS IN COMMON
TRANSPORTATION DISTRICT r'r
OF OREGON
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By: Byi
Neil McFarlane �—�Denms K�oellermeier
Executive Director City ofiTigard Public Works Director
WASHINGTON COUNTY CONSOLIDATED
COMMUNICATIONS AGEN Y
By
Paul Pedersen V
Agency Director
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