HomeMy WebLinkAbout2884 1 RESOLUTION NO 2 8 8 4 ' �1 r.irti
2 L do
3 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF AUBURN,
WASHINGTON, AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE A
4 PIPE LINE LICENSE AGREEMENT BETWEEN THE BURLINGTON NORTHERN
AND SANTA FE RAILWAY COMPANY (BNSF) AND THE CITY OF AUBURN FOR
5 THE CITY TO CONSTRUCT AND MAINTAIN ONE THIRTY-SIX INCH STORM
6 WATER DRAINAGE PIPELINE UNDER THE BNSF RAILROAD TRACKS ALONG
2ND STREET BETWEEN "A" STREET NW AND "C" STREET NW
7
8 THE CITY COUNCIL OF THE CITY OF AUBURN, WASHINGTON, IN A
9
REGULAR MEETING DULY ASSEMBLED, HEREWITH RESOLVES AS FOLLOWS
10
11 Section 1 The Mayor and City Clerk of the City of
12 Auburn are herewith authorized to execute a Pipe Line License
13 Agreement between the City and the Burlington Northern and
14 Santa Fe Railway Company (BNSF) for the City to construct and
15
maintain one thirty-six inch storm water drainage pipeline
16
17 under the BNSF railroad tracks along 2nd Street between "A"
18 street NW and "C" STREET NW A copy of said Agreement is
19 attached hereto, denominated as Exhibit "A" and made a part
20 hereof as though set forth in full herein
21
,Section 2 The Mayor is hereby authorized to implement
22
23 such administrative procedures as may be necessary to carry
24 out the directives of this legislation
25
26
Resolution No 2884
October 17, 1997
Page 1
1 DATED this 3rd day of November, 1997
2
3
CITY OF AUBURN
4
5
Chin 411
7 CHARLES A BOOTH
MAYOR
8
9
10 ATTEST
11
12
13 e
4cdAJVJ ielle E Daskam,
14 Acting City Clerk
15
16
17 APPROVED AS TO FORM
18 Th
19 � .
20
Michael J Reynolds,
21 City Attorney
22
23
24
25
26
Resolution No 2884
October 17, 1997
Page 2
ORIGINAL
Form Approved
by VP-Law Contract No 57-36/9
Tracking No. 97-22102
PIPE LINE LICENSE
THIS LICENSE, made this 9th day of October, 1997, subject to the terms and conditions
set forth herein, between THE BURLINGTON NORTHERN AND SANTA FE RAILWAY
COMPANY, its successors and assigns, a Delaware corporation (hereinafter called "Licensor"),
party of the first part, and CITY OF AUBURN, WASHINGTON, a Washington corporation
(hereinafter, whether one or more, called "Licensee"), party of the second part.
WITNESSETH, That the parties hereto for the consideration hereinafter expressed
covenant and agree as follows.
1 Subject to the terms and conditions hereinafter set forth, Licensor grants a non-
exclusive license to Licensee for it and/or its contractors to construct and maintain ONE
(1) STORM WATER DRAINAGE PIPELINE, 36-INCHES IN DIAMETER (hereinafter,
whether one or more pipe lines, called the "PIPE LINE") across or along the rail corridor
of Licensor at or near the station of Auburn, King County, Washington, Line Segment
51 Mile Post 21 30, the location of the PIPE LINE being more particularly shown on the
attached EXHIBIT A", Drawing No. 1-11824, dated October 6, 1997, and made a part
hereof
2. This agreement shall be effective It Ovem 6Q,- /¢ , 1997
3 Licensee shall use the PIPE LINE solely for carrying STORM WATER and shall
not use it to carry any other commodity or for any other purpose whatsoever
4 Licensee shall pay Licensor as compensation for this license the sum of TWO
THOUSAND FIVE HUNDRED AND NO/100 DOLLARS ($2,500 00).
5 Licensee shall, at its own cost and subject to the supervision and control of
Licensor's field engineer, locate and/or relocate, construct and maintain the PIPE LINE
in such a manner and of such material that it will not at any time be a source of danger
to or interference with the present or future tracks, roadbed or rail corridor of Licensor,
or the safe operation of its railroad. When the PIPE LINE is used for oil, gas, petroleum
products, or other flammable or highly volatile substances under pressure, the PIPE
LINE shall be constructed, installed and thereafter maintained in conformity with the
plans and specifications shown on print hereto attached, marked Exhibit B and made a
part thereof If at any time Licensee shall, in the judgment of Licensor, fail to perform
properly its obligations under this paragraph, Licensor may, at its option, arrange for the
performance of such work as it deems necessary for the safe operation of its railroad,
and in such event Licensee agrees to pay, within fifteen (15) days after bill shall have
been rendered therefor, the cost so incurred by Licensor, but failure on the part of
Licensor to perform the obligations of Licensee shall not release Licensee from liability
hereunder for loss or damage occasioned thereby — —
Exhibit "A"
Resolution No 2884
1 of 7
6 Licensee shall reimburse Licensor for any expense incurred by Licensor for false
work to support Licensor's tracks and for flagman to protect its traffic during installation
and maintenance periods and for any and all other expense incurred by Licensor on
account of the PIPE LINE. (The current rate, subject to change without notice for
furnishing of Licensor's Flagman is a minimum daily charge of $300 00 for the first eight
hours, or any part thereof, per day, with an hourly charge of $45 00 per hour for any
time over eight hours per day).
7 Prior to any boring work on or about any portion of the Premises, Licensee shall
explore the proposed location for such work with hand tools to a depth of at least three
(3) feet below the surface of the ground to determine whether pipeline(s) or other
structures exist below the surface, provided, however, that in lieu of the foregoing, the
Licensee shall have the right to use suitable detection equipment or other generally
accepted industry practice (e q., consulting with the Underground Services Association)
to determine the existence or location of pipeline(s) and other subsurface structures
prior to drilling or excavating with mechanized equipment.
8. Prior to installation, five (5) days advance notice must be given to Licensor's
Roadmaster, Wayne G. Lonngren at Tacoma, WA., telephone (206) 591-2562.
9 (a) Except as set forth in Section 9 (c), Licensee shall release, indemnify,
and hold harmless Licensor for all losses, damages, expenses, injuries or death to
Licensee, its employees, agents and contractors, arising in any manner from the
performance of this agreement, except for Licensor's gross negligence or intentional
misconduct.
Licensee further agrees to release, indemnify, and hold harmless Licensor for all
losses, damages, expenses, injuries, or death to any person, including Licensor, which
arise in any manner from the construction, maintenance, use, state of repair or
presence of Licensee's pipeline(s)
(b) Whenever any employee, agent or contractor of Licensee or any of
Licensee's Parties makes any claim for personal injury or death against Licensor within
the meaning of the Federal Employers' Liability Act, or any applicable safety act, (45
U S C e51 et. seq ), for any incident caused, wholly or in part, by property, equipment,
fixtures or condition belonging to or subject to the control of Licensee, or claims or
alleges that he or she is an employee of Licensor or is furthering the operational
activities of Licensor, Licensee agrees to indemnify and hold harmless Licensor for all
losses, damages, costs or expenses related to such claim, regardless of Licensor's
negligence.
(c) The liability assumed by Licensee shall not be affected by the fact, if it is
a fact, that the loss, damage, death or injury was occasioned by or contributed to by the
negligence of Licensor, its agents, servants employees, or otherwise, to the fullest
extent permitted by applicable law; provided, however, that Licensee shall have no
obligation to assume such liability to the extent caused by the negligence of Licensor or
its employees or agents where assumption of such liability would violate Washington,
Oregon, Idaho or the Province of British Columbia Laws _
Exhibit "A"
2 of 7 Resolution No. 2884
10 If at any time during the term hereof Licensor shall desire to make any use of its
rail corridor with which the pipeline will in any way interfere, including the relocation of
existing or the construction of new pipeline(s) and other facilities in which it shall have
an interest, Licensee shall, at Licensee's own cost, within thirty (30) days after receiving
written notice from Licensor to such effect, make such changes in the pipeline as in the
judgment of Licensor may be necessary to avoid interference with the proposed use of
its rail corridor
11 (a) Licensee shall, at its expense, procure and maintain throughout the term
of this License a comprehensive general form of insurance covering liability, including,
but not limited to, Public Liability, Personal Injury and Property Damage, as well as
Contractual Liability in the amount of $1,000,000 per occurrence and $2,000,000 in the
aggregate Such insurance shall contain no exclusion with respect to rail corridor of
Licensor in the care, custody or control of Licensee. Licensee's contractors shall also
procure and maintain the above coverage when on Licensor's property LICENSOR
AND CATELLUS MANAGEMENT CORPORATION SHALL BE NAMED AN
ADDITIONAL INSURED.
(b) All risk insurance on the PIPE LINE of the Licensee, or Licensor's
property in Licensee's care, custody and control, shall contain a waiver of subrogation of
claims against Licensor Licensee shall maintain Workers Compensation insurance
which shall contain a waiver of subrogation against Licensor
(c) All insurance shall be placed with insurance companies licensed to do
business in the State in which the PIPE LINE is located, with a current Best's Insurance
Guide Rating of B and Class X, or better Licensee shall provide Licensor in advance of
said installation a Certificate of Insurance evidencing such insurance. Insurance must
provide for coverage of incidents occurring within fifty (50) feet of a railroad track, and
any provision in the insurance policy to the contrary must be specifically deleted.
(d) A Railroad Protective Liability insurance policy issued in the name of
Licensor with limits of $2,000,000 for bodily injury and property damage per occurrence
with an aggregate of $6,000,000 must be provided when construction work will be
performed within fifty (50) feet of Licensor's tracks. The policy will remain in force during
the construction phase of this proiect and must be provided prior to Licensor signing this
license.
(e) In lieu of providing a Railroad Protective Liability Insurance policy
Licensee may participate in Licensor's Blanket Railroad Protective Liability Insurance
Policy available to Licensee or its contractor The limits of coverage are the same as
above. The cost is $1,000.00.
si I elect to participate in Licensor's Blanket Policy;
❑ I elect not to participate in Licensor's Blanket Policy
(f) The furnishing of insurance required by this Section shall in no way limit
or diminish the liability or responsibility of Licensee as provided under any Section of this
License.
Exhibit "A"
3 of 7 Resolution No 2884
12. Upon written notice from Licensor, Licensee agrees to assume the defense of
any lawsuit, or other proceeding brought against Licensor by any public body, individual,
partnership, corporation, or other legal entity, relating to any matter covered by this
License for which Licensee has an obligation to assume liability for and/or save and hold
harmless Licensor Licensee shall pay all the costs incident to such defense including,
but not limited to, attorneys' fees, investigators' fees, litigation expenses, settlement
payments, and amounts paid in satisfaction of judgments.
13 (a) Licensee shall comply with all federal, state and local environmental laws
and regulations in its use of Licensor's rail corridor, including, but not limited to, the
Resource Conservation and Recovery Act, as amended (RCRA), and the
Comprehensive Environmental Response, Compensation, and Liability Act, as amended
(CERCLA) Licensee shall not maintain a treatment, storage, transfer or disposal facility,
or underground storage tank, as defined by RCRA, on or under Licensor's rail corridor
Licensee shall not release or suffer the release of oil or hazardous substances, as
defined by CERCLA, on Licensor's rail corridor Notwithstanding any other requirements
in this contract, Licensee assumes all responsibility for the investigation and cleanup of
such release and shall indemnify and defend Licensor and its agents for all costs and
claims, including consultant and attorney fees, arising in any manner out of such release
or Licensee's failure to comply with environmental laws, regardless of whether such
costs or claims are caused or contributed to by the negligence or alleged negligence of
Licensor, except to the extent such costs or claims are proximately caused by Licensor's
gross negligence or intentional misconduct.
(b) Licensee shall give Licensor timely notice of any release, violation of
environmental laws or inspection or inquiry by governmental authorities charged with
enforcing environmental laws with respect to Licensor's rail corridor Licensee also shall
give Licensor timely notice of all measures undertaken by or on behalf of Licensee to
investigate, remediate, respond to or otherwise cure such release or violation.
(c) In the event that Licensor receives notice from Licensee or otherwise of a
release or violation of environmental laws which occurred or is occurring during the term
of this License, Licensor may require Licensee, at Licensee's sole expense, to take
timely measures to investigate, remediate, respond to or otherwise cure such release or
violation.
14 If default shall be made in any of the covenants or agreements of Licensee
contained in this document, or in case of any assignment or transfer of this License by
operation of law, Licensor may, at its option, terminate this License by serving five (5)
days' notice in writing upon Licensee; but any waiver by Licensor of any default or
defaults shall not constitute a waiver of the right to terminate this License for any
subsequent default or defaults, nor shall any such waiver in any way affect Licensor's
ability to enforce any Section of this License The remedy set forth in this Section shall
be in addition to, and not in limitation of, any other remedies that Licensor may have at
law or in equity
Exhibit "A"
Resolution No 2884
4 of 7
15 Licensee shall promptly pay and discharge any and all liens arising out of any
construction, alterations or repairs done, suffered or permitted to be done by Licensee
on the PIPE LINE and shall indemnify Licensor against any loss, liability or expense
incurred by Licensor on account of such liens. Licensor is hereby authorized to post any
notices or take any other action upon or with respect to the PIPE LINE that is or may be
permitted by law to prevent the attachment of any such liens to Licensor's premises;
provided, however, that failure of Licensor to take any such action shall not relieve
Licensee of any obligation or liability under this Section or any other Section of this
License
16 In the case of eviction of Licensee by anyone owning or obtaining title to the rail
corridor on which the PIPE LINE is located, or the abandonment by Licensor of said rail
corridor, Licensor shall not be liable to Licensee for any damage of any nature
whatsoever or to refund any payment made by Licensee to Licensor hereunder, except
the proportionate part of any recurring rental charge which may have been paid
hereunder in advance.
17 Any notice to be given by either party shall be deemed to be properly served if
deposited with the United States Postal Service, or other acceptable mailing service,
postage prepaid, addressed to either party, at the addresses and department shown
beneath signature of the parties.
18. In the event that Licensee consists of two or more parties, all the covenants and
agreements of Licensee herein contained shall be the joint and several covenants and
agreements of such parties.
19 Any contractor or subcontractor performing work on or in connection with the
PIPE LINE shall for the purpose of this license, be conclusively deemed to be the
servant and agent of Licensee acting on behalf and within the scope of such contractor's
or subcontractor's employment for Licensee.
20 Neither Licensee, nor the heirs, legal representatives, successors or assigns of
Licensee nor any subsequent assignee, shall underlease or sublet the PIPE LINE nor
assign or transfer this License or any interest herein, without the prior written consent
and approval of Licensor
21 It is understood and agreed that this License shall not be placed of public record.
22. All the covenants and provisions of this License shall be binding upon the heirs,
legal representatives, successors and assigns of Licensee. No assignment by Licensee
shall be binding upon Licensor without the written consent of Licensor in each instance
23 All questions concerning the interpretation or application of provisions of this
License shall be decided according to the laws of the State in which the PIPE LINE is
located.
Exhibit"A"
Resolution No. 2884
5 of 7
24 To the maximum extent possible each provision of this License shall be
interpreted in such manner as to be effective and valid under applicable law, but if any
provision of this License 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 License
25 The waiver by Licensor of the breach of any provision herein by Licensee shall in
no way impair the right of Licensor to enforce that provision for any subsequent breach
thereof
26. Notwithstanding any other provisions of this license, Licensee shall comply with
all statutes, ordinances, rules, regulations, orders and decisions issued by any federal,
state or local governmental body or agency established thereby relating to Licensee's
use of Licensor's premises hereunder
27 This license is given by Licensor and accepted by Licensee upon the express
condition that the same may be terminated at any time by either party upon thirty (30)
days' notice in writing to be served upon the other party, stating therein the date that
such termination shall take place, and that upon the termination of this license in this or
any other manner herein provided, Licensee, upon demand of Licensor, shall abandon
the use of the PIPE LINE and remove the same and restore the rail corridor of Licensor
as near as possible, to the same condition in which it was prior to the placing of the
PIPE LINE thereunder In case Licensee shall fail to restore Licensor's rail corridor
within Thirty (30) days after the effective date of termination, Licensor may proceed with
such work at the expense of Licensee No termination hereof shall release Licensee
from any liability or obligation hereunder, whether of indemnity or otherwise, resulting
from any acts, omissions or events happening prior to the date the PIPE LINE is
removed and the rail corridor of Licensor restored as above provided.
28. This License is the full and complete agreement between Licensor and Licensee
with respect to all matters relating to license on the Premises, and supersedes any and
all other agreements between the parties hereto relating to license on the Premises.
Exhibit "A"
Resolution No. 2884
6 of 7
Catellus Management Corporation is acting as agent for The Burlington Northern And
Santa Fe Railway Company
WHEREOF, the parties have executed this agreement in duplicate the day and year first
above written.
THE BURLINGTON NORTHERN AND SANTA FE RAILWAY
COMPANY
By Catellus Management Corporation
Its Attorney in Fact
4545 Fuller Drive, Suite 105
ing, TX 75038
By . . ...1 If. '
James n Ball, Manag r Contracts
CITY OF AUBURN, WASHINGTON
25 West Main
Auburn, WA 98001-49 98
By. a6711 (1-kJ
Q
Title. Charles A. Booth, Mayor
ATTEST
___,Xlia-Cd f-/-0-a-S----Y
Danielle E Daskam,
Acting City Clerk
APPRZ2Litr
AS LaoLTO FORM. Li.
Michael J. Reynolds,
Auburn City Attorney
Exhibit "A"
7 of 7 Resolution No. 2884
TRACKING NO 97-22102
.
EXHIBIT "A"
"
ATTACHED TO CONTRACT BETWEEN
THE BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANY AND
CITY OF AU 3U P \ m
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DATE 10/06/1997 / ' ---- '--
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DESCRIPTION OF PIPELINE
PIPELINE SHOWN BOLD
CARRIER CASING
CARRIER CASING
PIPE PIPE PIPE PIPE
SIZE ]6" 54 " LENGTH ON R/W 1U0/ 100/
CONTENTS STORM WORKING PRESSURE SRAV [ TY , ,,
P|P[ MATERIAL CONCRETE STEEL BURY RAS[/RA{L TO TOP OF CASING 7 -8
SPEC lFICATION / GRADE CL 3 GRADE BURY NATURAL GROUND 61 -9 "
WALL TH|CKNESS � 0. 75 /' BURY ROADWAY DlTCHEI 3' -0/' WlN.3 "
COAT{NG NONE NONE CATHODIC PROTECT ION NONE
VENTS NUMBER NONE S[Z[ - HE {CHT OF VENT ABOVE GROUND -
NOTE CASING TO BE JACKED OR DRY BORED ONLY
AT AUBURN
COUNTY OF KING STATE OF WA JSK
ee� c -J/Y7 f/ DRAWING NO 1 - 11824
43i/ / aLa
c Washington Cities Insurance
r-,
I At rily
A L. ' 199/
CITY OF AUBURN
20-Oct-97 f IIYr!_�n}{g ��3ts
BNSF Railway Co., Cattellus Management Corp
ATTN James A. Ball, Manager Contracts
4545 Fuller Drive, Suite 105
Irving,TX 78038 �a
RE. City of Auburn �J}
CITY ACTIVITIES AS RESPECTS, PIPE LINE LICENSE NO 97-22102
Evidence of Coverage
The above captioned entity is a member of the Washington Cities Insurance Authority
(WCIA), which is a self insured pool of over 86 municipal corporations in the State of
Washington.
WCIA has at least $1 million per occurrence combined single limit of liability coverage in
Its self insured layer that may be applicable in the event an incident occurs that is deemed
to be attributed to the negligence of the member
WCIA is an Interlocal Agreement among municipalities and liability is completely self
funded by the membership As there is no insurance policy involved and WCIA is not an
insurance company, your organization cannot be named as an "additional insured'
Sincerely,
--W-1-e_.„—
Eric B Larson
Assistant Director
cc
Diane Supler
Ber gt
Caroline Bergt E-U a r
A
cletter
PO.Box 1165, Renton, WA 98057
(425)277-7237 Fax 277-7242
' '�• ��
CITY ADMINISTRATION
OFFICE OF THE: MAYOR �r t i k F >
25 West Main, Auburn, WA 98001
4 As Charles A. Booth, Mayor
y (253)931-3041 Fax: (253)288-3132
November 7, 1997
Mr Ron Jackson, Contract Specialist
Catellus Management Corporation
4545 Fuller Drive, Suite 105
Irving, Texas 75038
RE. BNSF PIPE LINE LICENSE (Tracking No 97-22102)
Dear Mr Jackson.
The City of Auburn adopted Resolution No 2884 on November 3, 1997
authorizing a Pipe Line License with Burlington Northern and Santa Fe Railway
Company (BNSF) for the City to construct and maintain a thirty-six inch storm
water drainage pipeline under the BNSF railroad tracks along 2nd Street
between "A" Street NW and "C" Street NW (Line Segment 51, Mile Post 21 30) in
Auburn.
Enclosed are duplicate originals of the Pipe Line License that have been
executed by the City of Auburn and now require approval and signature by the
appropriate BNSF official. In addition, enclosed is a certificate of insurance
showing evidence of insurance coverage, and City of Auburn check number
127761 in the amount of $3,750 00 covering contract fee of $2,500 00,
processing fee of $250 00, and $1,000 00 for the City's participation in the
BNSF's Blanket Railroad Protective Policy
Once the Licenses have been approved and signed by BNSF, please return one
fully executed License to the Auburn City Clerk at the address above.
Sincerely,
�FtccSrl�s CI6
Charles A. Booth
Mayor
Encs
cc: Caroline Bergt, Contracts Administrator
ORIGINAL
Form Approved
by VP-Law Contract No
Tracking No 97-22102
PIPE LINE LICENSE
THIS LICENSE, made this 9th day of October, 1997, subject to the terms and conditions
set forth herein, between THE BURLINGTON NORTHERN AND SANTA FE RAILWAY
COMPANY, its successors and assigns, a Delaware corporation (hereinafter called "Licensor"),
party of the first part, and CITY OF AUBURN, WASHINGTON, a Washington corporation
(hereinafter, whether one or more, called "Licensee"), party of the second part.
WITNESSETH, That the parties hereto for the consideration hereinafter expressed
covenant and agree as follows:
1 Subject to the terms and conditions hereinafter set forth, Licensor grants a non-
exclusive license to Licensee for it and/or its contractors to construct and maintain ONE
(1) STORM WATER DRAINAGE PIPELINE, 36-INCHES IN DIAMETER (hereinafter,
whether one or more pipe lines, called the "PIPE LINE"), across or along the rail corridor
of Licensor at or near the station of Auburn, King County, Washington, Line Segment
51, Mile Post 21 30, the location of the PIPE LINE being more particularly shown on the
attached EXHIBIT "A" Drawing No. 1-11824, dated October 6, 1997, and made a part
hereof
2. This agreement shall be effective , 1997
3. Licensee shall use the PIPE LINE solely for carrying STORM WATER and shall
not use it to carry any other commodity or for any other purpose whatsoever
4 Licensee shall pay Licensor as compensation for this license the sum of TWO
THOUSAND FIVE HUNDRED AND NO/100 DOLLARS ($2,500.00)
5 Licensee shall, at its own cost and subject to the supervision and control of
Licensor's field engineer, locate and/or relocate, construct and maintain the PIPE LINE
in such a manner and of such material that it will not at any time be a source of danger
to or interference with the present or future tracks roadbed or rail corridor of Licensor,
or the safe operation of its railroad. When the PIPE LINE is used for oil, qas, petroleum
products, or other flammable or highly volatile substances under pressure, the PIPE
LINE shall be constructed, installed and thereafter maintained in conformity with the
plans and specifications shown on print hereto attached, marked Exhibit B and made a
part thereof If at any time Licensee shall, in the judgment of Licensor, fail to perform
properly its obligations under this paragraph, Licensor may, at its option, arrange for the
performance of such work as it deems necessary for the safe operation of its railroad,
and in such event Licensee agrees to pay, within fifteen (15) days after bill shall have
been rendered therefor, the cost so incurred by Licensor, but failure on the part of
Licensor to perform the obligations of Licensee shall not release Licensee from liability
hereunder for loss or damage occasioned thereby
1 of 7
6. Licensee shall reimburse Licensor for any expense incurred by Licensor for false
work to support Licensor's tracks and for flagman to protect its traffic during installation
and maintenance periods and for any and all other expense incurred by Licensor on
account of the PIPE LINE. (The current rate, subject to change without notice, for
furnishing of Licensor's Flagman is a minimum daily charge of $300 00 for the first eight
hours, or any part thereof per day, with an hourly charge of $45 00 per hour for any
time over eight hours per day).
7 Prior to any boring work on or about any portion of the Premises, Licensee shall
explore the proposed location for such work with hand tools to a depth of at least three
(3) feet below the surface of the ground to determine whether pipeline(s) or other
structures exist below the surface, provided, however, that in lieu of the foregoing, the
Licensee shall have the right to use suitable detection equipment or other generally
accepted industry practice (e.g., consulting with the Underground Services Association)
to determine the existence or location of pipeline(s) and other subsurface structures
prior to drilling or excavating with mechanized equipment.
8. Prior to installation, five (5) days advance notice must be given to Licensors
Roadmaster, Wayne G. Lonngren at Tacoma, WA., telephone (206) 591-2562.
9 (a) Except as set forth in Section 9 (c), Licensee shall release, indemnify,
and hold harmless Licensor for all losses, damages, expenses, injuries or death to
Licensee its employees, agents and contractors, arising in any manner from the
performance of this agreement, except for Licensor's gross negligence or intentional
misconduct.
Licensee further agrees to release, indemnify and hold harmless Licensor for all
losses, damages, expenses, injuries, or death to any person, including Licensor, which
arise in any manner from the construction, maintenance, use, state of repair or
presence of Licensee's pipeline(s)
(b) Whenever any employee, agent or contractor of Licensee or any of
Licensee's Parties makes any claim for personal injury or death against Licensor within
the meaning of the Federal Employers' Liability Act, or any applicable safety act, (45
U S.0 e51 et. seq.), for any incident caused, wholly or in part, by property, equipment,
fixtures or condition belonging to or subject to the control of Licensee, or claims or
alleges that he or she is an employee of Licensor or is furthering the operational
activities of Licensor, Licensee agrees to indemnify and hold harmless Licensor for all
losses, damages, costs or expenses related to such claim, regardless of Licensor's
negligence.
(c) The liability assumed by Licensee shall not be affected by the fact, if it is
a fact, that the loss, damage, death or injury was occasioned by or contributed to by the
negligence of Licensor, its agents, servants employees, or otherwise, to the fullest
extent permitted by applicable law; provided, however, that Licensee shall have no
obligation to assume such liability to the extent caused by the negligence of Licensor or
its employees or agents where assumption of such liability would violate Washington,
Oregon, Idaho or the Province of British Columbia Laws.
2 of 7
r ,
10. If at any time during the term hereof Licensor shall desire to make any use of its
rail corridor with which the pipeline will in any way interfere, including the relocation of
existing or the construction of new pipeline(s) and other facilities in which it shall have
an interest, Licensee shall, at Licensee's own cost, within thirty (30) days after receiving
written notice from Licensor to such effect, make such changes in the pipeline as in the
judgment of Licensor may be necessary to avoid interference with the proposed use of
its rail corridor
11 (a) Licensee shall, at its expense, procure and maintain throughout the term
of this License a comprehensive general form of insurance covering liability including,
but not limited to, Public Liability, Personal Injury and Property Damage, as well as
Contractual Liability in the amount of $1,000,000 per occurrence and $2,000,000 in the
aggregate. Such insurance shall contain no exclusion with respect to rail corridor of
Licensor in the care, custody or control of Licensee. Licensee's contractors shall also
procure and maintain the above coverage when on Licensor's property LICENSOR
AND CATELLUS MANAGEMENT CORPORATION SHALL BE NAMED AN
ADDITIONAL INSURED.
(b) All risk insurance on the PIPE LINE of the Licensee or Licensor's
property in Licensee's care, custody and control, shall contain a waiver of subrogation of
claims against Licensor Licensee shall maintain Workers Compensation insurance
which shall contain a waiver of subrogation against Licensor
(c) All insurance shall be placed with insurance companies licensed to do
business in the State in which the PIPE LINE is located, with a current Best's Insurance
Guide Rating of B and Class X, or better Licensee shall provide Licensor in advance of
said installation a Certificate of Insurance evidencing such insurance. Insurance must
provide for coverage of incidents occurring within fifty (50) feet of a railroad track, and
any provision in the insurance policy to the contrary must be specifically deleted.
(d) A Railroad Protective Liability insurance policy issued in the name of
Licensor with limits of $2,000,000 for bodily injury and property damage per occurrence
with an aggregate of $6,000,000 must be provided when construction work will be
performed within fifty (50) feet of Licensor's tracks. The policy will remain in force during
the construction phase of this project and must be provided prior to Licensor signing this
license.
(e) In lieu of providing a Railroad Protective Liability Insurance policy,
Licensee may participate in Licensor's Blanket Railroad Protective Liability Insurance
Policy available to Licensee or its contractor The limits of coverage are the same as
above. The cost is $1,000.00.
M I elect to participate in Licensor's Blanket Policy;
I elect not to participate in Licensor's Blanket Policy
(f) The furnishing of insurance required by this Section shall in no way limit
or diminish the liability or responsibility of Licensee as provided under any Section of this
License.
3 of 7
•
12. Upon written notice from Licensor, Licensee agrees to assume the defense of
any lawsuit, or other proceeding brought against Licensor by any public body, individual,
partnership, corporation, or other legal entity, relating to any matter covered by this
License for which Licensee has an obligation to assume liability for and/or save and hold
harmless Licensor Licensee shall pay all the costs incident to such defense including,
but not limited to, attorneys' fees, investigators' fees, litigation expenses, settlement
payments, and amounts paid in satisfaction of judgments.
13. (a) Licensee shall comply with all federal, state and local environmental laws
and regulations in its use of Licensor's rail corridor, including, but not limited to the
Resource Conservation and Recovery Act, as amended (RCRA), and the
Comprehensive Environmental Response, Compensation, and Liability Act, as amended
(CERCLA) Licensee shall not maintain a treatment, storage, transfer or disposal facility,
or underground storage tank, as defined by RCRA, on or under Licensor's rail corridor
Licensee shall not release or suffer the release of oil or hazardous substances, as
defined by CERCLA, on Licensor's rail corridor Notwithstanding any other requirements
in this contract, Licensee assumes all responsibility for the investigation and cleanup of
such release and shall indemnify and defend Licensor and its agents for all costs and
claims, including consultant and attorney fees, arising in any manner out of such release
or Licensee's failure to comply with environmental laws regardless of whether such
costs or claims are caused or contributed to by the negligence or alleged negligence of
Licensor, except to the extent such costs or claims are proximately caused by Licensor's
gross negligence or intentional misconduct.
(b) Licensee shall give Licensor timely notice of any release, violation of
environmental laws or inspection or inquiry by governmental authorities charged with
enforcing environmental laws with respect to Licensor's rail corridor Licensee also shall
give Licensor timely notice of all measures undertaken by or on behalf of Licensee to
investigate, remediate, respond to or otherwise cure such release or violation.
(c) In the event that Licensor receives notice from Licensee or otherwise of a
release or violation of environmental laws which occurred or is occurring during the term
of this License, Licensor may require Licensee, at Licensee's sole expense, to take
timely measures to investigate, remediate, respond to or otherwise cure such release or
violation.
14 If default shall be made in any of the covenants or agreements of Licensee
contained in this document, or in case of any assignment or transfer of this License by
operation of law, Licensor may, at its option, terminate this License by serving five (5)
days' notice in writing upon Licensee, but any waiver by Licensor of any default or
defaults shall not constitute a waiver of the right to terminate this License for any
subsequent default or defaults, nor shall any such waiver in any way affect Licensor's
ability to enforce any Section of this License. The remedy set forth in this Section shall
be in addition to, and not in limitation of, any other remedies that Licensor may have at
law or in equity
4 of 7
15 Licensee shall promptly pay and discharge any and all liens arising out of any
construction, alterations or repairs done, suffered or permitted to be done by Licensee
on the PIPE LINE and shall indemnify Licensor against any loss, liability or expense
incurred by Licensor on account of such liens. Licensor is hereby authorized to post any
notices or take any other action upon or with respect to the PIPE LINE that is or may be
permitted by law to prevent the attachment of any such liens to Licensor's premises;
provided, however, that failure of Licensor to take any such action shall not relieve
Licensee of any obligation or liability under this Section or any other Section of this
License.
16. In the case of eviction of Licensee by anyone owning or obtaining title to the rail
corridor on which the PIPE LINE is located, or the abandonment by Licensor of said rail
corridor, Licensor shall not be liable to Licensee for any damage of any nature
whatsoever or to refund any payment made by Licensee to Licensor hereunder except
the proportionate part of any recurring rental charge which may have been paid
hereunder in advance.
17 Any notice to be given by either party shall be deemed to be properly served if
deposited with the United States Postal Service, or other acceptable mailing service
postage prepaid, addressed to either party, at the addresses and department shown
beneath signature of the parties.
18. In the event that Licensee consists of two or more parties, all the covenants and
agreements of Licensee herein contained shall be the joint and several covenants and
agreements of such parties.
19 Any contractor or subcontractor performing work on or in connection with the
PIPE LINE shall for the purpose of this license, be conclusively deemed to be the
servant and agent of Licensee acting on behalf and within the scope of such contractor's
or subcontractor's employment for Licensee.
20 Neither Licensee, nor the heirs, legal representatives, successors or assigns of
Licensee, nor any subsequent assignee, shall underlease or sublet the PIPE LINE nor
assign or transfer this License or any interest herein, without the prior written consent
and approval of Licensor
21 It is understood and agreed that this License shall not be placed of public record.
22. All the covenants and provisions of this License shall be binding upon the heirs,
legal representatives, successors and assigns of Licensee. No assignment by Licensee
shall be binding upon Licensor without the written consent of Licensor in each instance.
23 All questions concerning the interpretation or application of provisions of this
License shall be decided according to the laws of the State in which the PIPE LINE is
located.
5 of 7
24 To the maximum extent possible, each provision of this License shall be
interpreted in such manner as to be effective and valid under applicable law, but if any
provision of this License 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 License.
25 The waiver by Licensor of the breach of any provision herein by Licensee shall in
no way impair the right of Licensor to enforce that provision for any subsequent breach
thereof
26. Notwithstanding any other provisions of this license, Licensee shall comply with
all statutes, ordinances, rules, regulations, orders and decisions issued by any federal,
state or local governmental body or agency established thereby relating to Licensee's
use of Licensor's premises hereunder
27 This license is given by Licensor and accepted by Licensee upon the express
condition that the same may be terminated at any time by either party upon thirty (30)
days' notice in writing to be served upon the other party stating therein the date that
such termination shall take place, and that upon the termination of this license in this or
any other manner herein provided, Licensee upon demand of Licensor, shall abandon
the use of the PIPE LINE and remove the same and restore the rail corridor of Licensor,
as near as possible, to the same condition in which it was prior to the placing of the
PIPE LINE thereunder In case Licensee shall fail to restore Licensor's rail corridor
within Thirty (30) days after the effective date of termination, Licensor may proceed with
such work at the expense of Licensee. No termination hereof shall release Licensee
from any liability or obligation hereunder, whether of indemnity or otherwise, resulting
from any acts, omissions or events happening prior to the date the PIPE LINE is
removed and the rail corridor of Licensor restored as above provided.
28. This License is the full and complete agreement between Licensor and Licensee
with respect to all matters relating to license on the Premises, and supersedes any and
all other agreements between the parties hereto relating to license on the Premises.
6 of 7
Catellus Management Corporation is acting as agent for The Burlington Northern And
Santa Fe Railway Company
WHEREOF, the parties have executed this agreement in duplicate the day and year first
above written.
THE BURLINGTON NORTHERN AND SANTA FE RAILWAY
COMPANY
By Catellus Management Corporation
Its Attorney in Fact
4545 Fuller Drive, Suite 105
Irving, TX 75038
By
James A. Ball, Manager Contracts
CITY OF AUBURN, WASHINGTON
25 West Main
Auburn, WA.
j 9( 8��0��01-49(98
ByOJI�C- 3 `�-J t��
Title: Charles A. Booth. Mayor
ATTEST:
`��� C
Danielle E. Daskam,
Acting City Clerk
APPR AS TC FORM.
i 42, , II ii
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- Michael J Reynolds,
Auburn City Attorney
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CATELLUS
October10 1997
97-12101
Mr Les Brattain, P E
Department of Public Works
City of Auburn
25 West Main
Auburn, WA. 98001-4998
Dear Mr Leeds
Your File PR 580 Enclosed please find duplicate counterparts of the requested License
for a 36-inch storm water drainage pipeline crossing BNSF's property at Auburn, WA., for
execution by an official authorized to execute contract agreements on behalf of the City Please
have both copies executed and return both copies of this permit for completion on part of The
Burlington Northern And Santa Fe Railway Company ("BNSF") along with the following
requirements:
• A check in the amount of $2,750.00 payable to The Burlington Northern And Santa Fe
Railway Company which covers the contract fee of $2 500 00 and the processing fee of
$250 00
• P cenificate of insurance evidencing that Licensee maintains a comprehensive general form
of insurance as required in the agreement BNSF and Catellus Management Corporation
shall be named as additional insured,
• A separate certificate of insurance proving the _urrbase of a Railroad Protect -e I.rapidity
Policy as required in the agreement. BNSF will be the only insured party In lieu of this
recu'rement. City may participate in the BNSF's Blanket Railroad Protective Policy by
checking the appropriate box in the contract and including an additional check in the amount
of $1,00300 made payable to The Burlington Northern And Santa Fe Railway Company
with the above check.
The enclosed License is not a binding agreement and shall become binding only when,
and if, it is executed by City and fully approved and executed by BNSF (or its Attorney In
Fact, Catellus Management Corporation) Please be informed that if contracts, fees, and
insurance are not returned within forty-five (45) days, the processing fee will increase to
$500 00
Upon completion on behalf of BNSF, one fully executed License will be returned for the
City's records. If you have any questions, please contact me at (972) 719-6156
Sincerely,
Ron J kson
Contract Specialist
CATELLUS MANAGEMENT CORPORATION
4545 FULLER Dri%E, SUITE 105 IRVWI TEXAS 75038 (972) 719-0111 FAX (972) 719-6153
�]IL
lip SEC v 4 1997
CATELLUS
DEC ERK 1 S 199OFF7
ICE
November 25, 1997 CITY OFAU1UNN
CITY CL
97-22102
Mr Charles A. Booth, Mayor
City of Auburn
City Administration
25 West Main
Auburn, WA.98001
Attention. Ms. Caroline Bergt
Dear Mr Booth:
Enclosed please find executed Licenses for 36-inch storm drainage pipeline
crossing BNSF Ry Co.'s property at Auburn. WA. for the City s file. A copy of the
executed Agreement must be available upon request at the job site allowing
authorization to do the work. Please contact Roadmaster Wayne G. Lonngren at
Tacoma, WA., telephone (206) 591-2562, five (5) days in advance of entry and
BEFORE YOU DIG, CALL 1-800-533-2891
if you need additional information, please contact me at (972) 719-6156
Sincerely,
Ron J kson
Contract Specialist
Enclosure
cc: Mr Wayne G Lormgren, Roadmaster
BNSF Railway Company
605 Puyallup Avenue
Tacoma, WA. 98421
e� C?� et
CATELLUS MANAGEMENT CORPORATION
4545 FULLER DRIVE, SUITE 105, IRVINIU, TEXAS 75038 (800) 841 2771 FAX (9721 719-6153
AM Of
CHARLES A.BOOTH,MAYOR �•�� AUBURN CITY CLERK
Robin Wohlhuetcr,City Clerk A ) 25 West Main, Auburn,WA 98001
Dam Daskam, Deputy City Clerk City Clerk:(253)931-3039
Tamie Bothell,Records/License Clerk Business Registration:(253)931-3007 Fax:(253)288-3132
STATE OF WASHINGTON)
ss.
COUNTY OF KING
I, Danielle Daskam, the duly appointed, qualified City Clerk of the City of Auburn,
a Municipal Corporation and Code City, situate in the County of King, State of
Washington, do hereby certify that the foregoing is a full, true and correct copy of
Resolution No 2884 of the resolutions of the City of Auburn, entitled "RESOLUTION
NO 2884 "
I certify that said Resolution No 2884 was duly passed by the Council and
approved by the Mayor of the said City of Auburn on the 3rd day of November, 1997
Witness my hand and the seal of the City of Auburn this 11th day of December, 1997
Danielle'Daskam, City Clerk
City of Auburn