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HomeMy WebLinkAboutOrdinance No. 20241 ORDINANCE NO. 20241 AN O~INANCE GRANTING TO THE BUI~INGTON NORTHEP~d AND SANTA FE RAIL~TA¥ COM?ANY A NON- EXCLUSIVE FRANCHISE TO USE THE PUBLIC WAY TO CONSTRUCT AND MAINTAIN P~VATE COMMERCIAL FACILITIES WITHIN THE CITY OF EUGENE. mean: THE CITY OF EUGENE DOES ORDAIN AS FOLLOWS: Section 1. Definitions. As used in this Ordinance, the following words and phrases ~ky. The City of Eugene, Oregon. Ci . The City Manager of the City or his or her designee. Facilities. All tracks and associated structures located in the public way specified in Section 2 of this Franchise that are owned by Grantee for use by Grantee in providing rail services° Grantee. The Burlington Northern and Santa Fe Railway Company, a Delaware corporation, and its successors and assigns. Public wa2~. Any street, road, alley, right-of-way, pedestrian or bicycle easeraent or ufilky easement for public use that is controlled by City. Section 2. Use of Public Wasi. Subject to the provisions and restrictions of this Ordinance, the Eugene Code, 1971, and the applicable provisions of the Interstate Commerce Corr~m~ssion Ten~ination Act of 1995 and other federal laws, rules and regulations as amended or replaced, City ~ants to Grantee the non-exclusive privilege to lay, construct, and maintain its present tracks and its present facilities, and to operate trains and cars thereover, and to transport passengers, fi~eight and other materials upon the following named streets and places in the City: Across all intervening streets southerly and easterty of the intersection of the right-of: way of Grantee and the northern city limks oft he City, and extending southeasterly to the easterly l~ne of the intersection of Grant Street and 5~h Avenue, including the crossings of Grant Street, Garfield Street, Roosevelt Boulevard, Side Street, Bethel Drive and Prairie Roa& Grantee agrees that, except in unusual circumstances such as equipment failures, it will not svdtch Ordinance- 1 trains or cars on the streets of the City' except as necessary- to serve warehouses or other loading places. Grantee shall at all times maintain its facilities in a state of reasonably good repair and shall obtain and maintain a subscription to the Oregon Utility Notification Center (OUNC) for the duration of this franchise. All underground facilities shall be located and marked as required under OUNC standards. Section 3, Use of Private Prope_g_.y. To the extent, if any, that it needs to do so, City grm~ts to Grantee the right to maintain and operate cars over all private tracks and private properlzy now occupied by it. SeCtion 4. Construction and Repairs in Public Wa~. 4.1 Grantee. City grants to Grantee the right to construct, re-erect, reconstruct, mhd maintain poles, wires~ and other necessary and convenient equipment fbr the purpose of preserving and maintaining its present equipment for convey4ng power and electrical current for ks own use, upon the designated streets, subject to reasonable and normal utility installation requirements. It shall be Grantee's responsibility to locate and avoid all 'utilities located within Grantee's construction area, and Grantee shall be liable for any costs to repair or replace any ufitities that may be damaged due to Grantee's construction or location of its facilities. Underground abandoned facilities shall be mapped and located as required in OUNC standards. Maps of all underground abandoned facilities shall be submitted to the City Engineer or designee for refbrence and shall not relieve the grantee from the responsibility of locating or removing abandoned m~dergroUnd facilities. Grantee shall have the right to make all necessary excavations in any public way' for the purpose of constructing and maintaining its facilities. To the extent not preempted by federal law, rules or regulations, Grantee's use of the public way shall comply with the standard speCifiCations of the City, including, but not limited to the City of Eugene Manual on Traffic Control Devices, Signing, etc. for Construction and Maintenance on Streets and Highways, and the City of Eugene Policies and Procedures: Utility and Right-of-Way Permits, Construction Within and Use of the Public Way, and all other applicable Federal, State, and local laws, rules, and regulations. To Ordinance ~ 2 the extent not preempted by federal law, rules or regulations, Grantee shall do no work affecting the public way w~thout first obtaining the permits required by City~ which may include plan submittal, approval mhd the payment of fees before work begins. Grantee shall furnish all necessary material and labor to install and maintain its facilities at its own expense. 4.2 City. Nothing in this Ordinance shall be construed in any 'way to prevent City from constructing and maintaining any public improvement in any public way, except that the City agrees that any public improvement in the public ways designated in Section 2 herein shal! be constructed and maintained in such a manner as does not unreasonably interfere with the free and unobstructed use by Grantee of its facilities in the public ways. 4.3 Grantee shall construct and maintain its tracks in the public ways designated in Section 2 herein so that the top of the rails shall at all times conform to the street grade (except Where the change made is separation of grades). The City hereby reserves the right to change the grade of any public way at any time. When the City shall change the grade of the public ways, Grantee hereby agrees to waive any and all damages that it may sustain on account of having to readjust its tracks by reason of the change of grade. Grantee makes this waiver upon condition that any ch~ge of grade hereafter made by the City to the public ways designated in Section 2 herein shall not be unreasonable or such as to interfere w-ith the proper and practical operation of Grantee's ~hcitkies after adjustment to the new grade. Section 5~ Abando~ent of Facilities. If Grantee ceases to make use of its facilities within the public way for the purposes authorized by this franchise for a continuous period of one year or more and Grantee does not then intend to operate the facilities and has no federal common cm~rier Or other obligation to maintain service, the facilities shall be deemed abandoned. Upon written notice to Grantee at its address indicated in its acceptance of this Ordinance, City may then reo?aire Grantee to remove the facilities and restore the public way at Grantee's sole cost and expense. If Grantee ~hils to commence removal within 90 days and remove the facilities and restore the public way within one year of receipt of notice from City, City may, at its option and in its sole Ordinance - 3 discretion~ remove the facilities from the public way and require Grantee to pay' for the full cost of removal and restoration of the public way, or City may assume possession and ox~mership of the facilkies. If Grantee removes the fhcilities from the public way but fails to restore the public way to its prior condition, City may complete the repairs and bill Grantee for the full cost thereof. Whenever used in this Section, the term "Grantee" shall mean Grantee or any successor railroad. Section 6. .QOperation of Trains. In the maintenance and operation of its trains and facilities, Grantee shall comply with all applicable federal state and City laws, rules and regulations. Section 7. Term of Franchise. The privileges and franchise herein granted shall continue and be in force for a period of twenty (20) years from and after the date this Ordinance becomes effective; provided, however, that either City or Grantee may, upon at least thirty (30) days written notice to the other prior to the expiration of each ten (10) year period from the effective date of this franchise, open this agreement to negotiate provisions therein including the right-of-way use/occupancy ibc; and provided, however, that either City or Grantee may, at any time but upon at least thirty (30) days written notice to the other, open this agreement as necessary to negotiate provisions to address significant changes in applicable laws or uses of additional rights-of-way by Grantee. The negotiations and dispute resolution, if any, shall be governed by the principle that, to the extent possi'ble, the terms of this franchise shall be consistent with local, state and federal law in existence at the time of renegotiation. Section 8. Effective Date. This Ordinance shall take effect and be in force from and after its passage and approval and acceptance by Grantee. Grantee shall, Mthin thirty (30) days of the passage of this Ordinance, file with the City Recorder its written acceptance of all the terms and conditions of this Ordinance, Section 9. Franchise Fee. In consideration of the privileges and franchise granted, Grantee shall pay annually by' June 30 of each calendar year an amount equal to $5.00 per linear fbot Ordinance - 4 of public way used. The parties agree that the rights-of-way described in Section 2 herein total 320 The payment of the franchise fee shall not be credited toward the payment of property taxes or payments in lieu thereof~ nor toward any sales or income tax adopted by the City, nor toward any permit fees required by the Eugene Code, 1971. Section 10~ Indemnification. Grantee shall indemnify and hold harmless City against and from tha~ portion of damages of any kind or character arising from the negligence of the Grantee or Grantee's employees~ agents or subcontractors in the use or exercise of the rights herein granted. Passed by the City Council this 10th day of December, 2001 C~ty Recorder Approved by the Mayor this 10th day of December, 2001 MaYOr Ordinance - 5