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HomeMy WebLinkAbout4881 RESOLUTION NO 4 8 8 1 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF AUBURN, WASHINGTON, AUTHORIZING THE RENEWAL OF PUBLIC WAY AGREEMENT (PWA) 99-02 AND AMENDING THE TERMS OF THE AGREEMENT WHEREAS, Olympic Pipeline Company has applied to the City for renewal of PWA 99-02, which was authorized by Resolution No 4298, and WHEREAS, the City has reviewed the Grantee's renewal application and determined that renewal of the Public Way Agreement authorized by Resolution No. 4881 with minor amendments is in the best interest of the City and the citizens of Auburn. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF AUBURN, WASHINGTON, HEREBY RESOLVES as follows. Section 1 The City approves Grantee's application for the first renewal with the amendments and under the conditions set forth in this Resolution. Section 2. Section 3, "Terms of Agreement" of Resolution No. 4298 is amended to read as follows, A. This Public Way Agreement shall run for an additional five year period from the date of execution specified in Section 5 Section 3. Acceptance of Amendments Resolution No. 4881 PWA 12-36 November 13, 2012 Page 1 of 3 A. This Amendment and any rights granted hereunder shall not become effective for any purpose unless and until Grantee files with the City Clerk the Statement of Acceptance, attached hereto as Exhibit "A", and incorporated by reference. The date that such Statement of Acceptance is filed with the City Clerk shall be the effective date of the renewal, which the City has assigned "PWA 12-36" B Should the Grantee fail to file the Statement of Acceptance with the City Clerk within 30 days after the effective Date of the ordinance approving the Amendatory Renewal, said renewal and corresponding agreement will automatically terminate and shall be null and void. Section 4. Implementation The Mayor is hereby authorized to implement such administrative procedures as may be necessary to carry out the directions of this legislation. Section 5. Severability The provisions of this resolution are declared to be separate and severable. The invalidity of any clause, sentence, paragraph, subdivision, section or portion of this ordinance, or the invalidity of the application thereof to any person or circumstance shall not affect the validity of the remainder of this resolution, or the validity of its application to other persons or circumstances. Resolution No. 4881 PWA 12-36 November 13, 2012 Page 2 of 3 Section 6. Effective date This Resolution shall be in full force and effect upon passage and signatures hereon Dated and Signed this day of 2012. CITY OF AUBURN Peter B. Lewis Mayor ATTEST Danielle Daskam A;P7PI160VE D OFO ' I eid City Attorney Resolution No. 4881 PWA 12-36 November 13, 2012 Page 3 of 3 EXHIBIT "A" STATEMENT OF ACCEPTANCE Olympic Pipe Line Company, for itself, its successors and assigns, hereby accepts and agrees to be bound by all terms, conditions and provisions of the Public Way Agreement attached hereto and incorporated herein by this reference [Grantee] By ✓ %% Date- 102 1,12- Name. ry��te 4&4ell Title /-7. .s• 'en STATE OF !i 1 ,Qva J )ss. COUNTY OF U On this 03 day of 't)cY'P(jthLV 2012, before me the undersigned, a Notary Public in and for the State of ��y�g I1i duly commissioned and sworn, personally appeared, iuy-cr� V' fcke a of '� the company that executed the within and foregoing instrumbn , and acknowledged the said instrument to be the free and voluntary act and deed of said company, for the uses and purposes therein mentioned, and on oath stated that he/she is authorized to execute said instrument. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal on the date hereinabove set forth. ` �lA D B�iri Signature �Cti11r �l Rr� A" NOTARY PUBLIC in and for pe State of 4� residing at ' ?p°t'' =2 = MY COMMISSION EXPIRES C L4 tiA S HANG ------------------------------ Resolution No 4881 November 13, 2012 Page 1 of 1 RESOLUTION NO. 4 2 9 8 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF AUBURN, WASHINGTON, AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE A PUBLIC WAY AGREEMENT BETWEEN THE CITY OF AUBURN AND OLYMPIC PIPE LINE COMPANY, INC. WHEREAS, Olympic Pipe Line Company Inc. has applied to the City for a non-exclusive Public Way Agreement for the right of entry, use, and occupation of certain public rights-of-way within the City of Auburn, expressly to i install, construct, erect, operate, maintain, repair, relocate and remove its facilities in, on, upon, along and/or across those right(s)-of-way; and WHEREAS, on February 4, 2008, the Auburn City Council conducted a public hearing to take public comments on Olympic Pipe Line Company's application; and WHEREAS, the City has reviewed Olympic Pipe Line Company's application and the information received at the public hearing and has determined that the location of Olympic Pipe Line Company's facilities within the requested rights-of-way is in the best interest of the City and the citizens of Auburn, NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF AUBURN, KING COUNTY, WASHINGTON, HEREBY RESOLVES as follows: Resolution No.4298 January 8,2008 Page 1 of 3 Section 1. The Mayor of the City of Auburn and the Auburn City Clerk are hereby authorized to execute a Public Way Agreement between the City of Auburn and Olympic Pipe Line Company Inc. which agreement shall be in substantial conformity with the Agreement a copy of which is attached hereto, marked as Exhibit"A" and incorporated herein by this reference. Section 2. The Mayor is hereby authorized to implement such administrative procedures as may be necessary to carry out the directives of this legislation. Section 3. This resolution shall be in full force and effect upon passage and signatures hereon. Dated and Signed thisL.day of 2008. (CffTlD ..AUBIJRR PEER B: LEWIS MAYOR ATTEST Ddlqlelle E. Daskam, City Clerk Resolution No.4298 January 8,2008 Page 2 of 3 i AMP OR i i y A orney Resoludon No.4298 January 8,2008 Page 3 of 3 CITY OF AUBURN PUBLIC WAY AGREEMENT WITH OLYMPIC PIPE LINE COMPANY This Public Way Agreement is entered into by and between the City of Auburn, Washington, a municipal corporation ("City") and Olympic Pipe Line Company, a Delaware corporation ("Grantee"). WHEREAS, Grantee has applied to the City for a non-exclusive Public Way Agreement for the right of entry, use, and occupation of certain public right(s)-of-way within the City of Auburn, expressly to install, construct, erect, operate, maintain, repair, relocate and remove its facilities in, on, upon, along and/or across those right(s)-of-way; and WHEREAS, the City has reviewed the Grantee's application and determined that the location of Grantee's facilities within the requested right(s)- of-way is in the best interest of the City and the citizens of Auburn, NOW, THEREFORE, in consideration of the mutual benefits and conditions set forth below, the parties hereto agree as follows: Section 1 Notice A. Written notices to the parties shall be sent by certified mail to the following addresses, unless a different address shall be designated in writing and delivered to the other party City. Right-of-Way Manager City of Auburn 25 West Main Street Auburn, WA 98001-4998 Telephone: (253) 931-3010; Fax: (253) 931-3048 with a copy to: City Clerk City of Auburn 25 West Main Street Auburn, WA 98001-4998 Grantee: Olympic Pipe Line Company Attention: Right-of-Way Department 2319 Lind Avenue Renton, WA 98055 --------------------- Version Date: 2/4/08 PUBLIC WAY AGREEMENT Pagel B Any changes to the above-stated Grantee information shall be sent to the City's Right-of-Way Manager, with copies to the City Clerk, referencing the title of this agreement. C The above-stated Grantee voice and fax telephone numbers shall be staffed at least during normal business hours of 8 AM to 5 PM Pacific Standard time. Section 2. Grant of Right to Use Public Way A. Subject to the terms and conditions stated herein, the City grants to the Grantee general permission to enter, use, and occupy the rights)-of-way and other City-owned property specified in Exhibit "A," attached hereto and incorporated by reference (the "Public Way"). B. The Grantee is authorized to install, remove, construct, erect, operate, maintain, relocate and repair the facilities specified in Exhibit "B," attached hereto and incorporated by reference, and all necessary appurtenances thereto, ("Grantee Facilities") for provision of the services specified in Exhibit "B" ("Grantee Services") in, along, under and across the Public Way, for the sole purpose of providing Grantee Services to persons or areas outside the City C This Public Way Agreement does not authorize the use of the Public Way for any facilities or services other than Grantee Facilities and Grantee Services, and it extends no rights or privilege relative to any facilities or services of any type, including Grantee Facilities and Grantee Services, elsewhere within the City D This Public Way Agreement is non-exclusive and does not prohibit the City from entering into other agreements, including Public Way Agreements, impacting the Public Way, unless the City determines that entering into such agreements interferes with Grantee's right set forth herein. E. Except as explicitly set forth herein, this Public Way Agreement does not waive any rights that the City has or may hereafter acquire with respect to the Public Way or any other City roads, rights-of-way, property, or any portions thereof This Public Way Agreement shall be subject to the power of eminent domain. F The City reserves the right to change, regrade, relocate, abandon, or vacate the Public Way If, at any time during the term of this Public Way Agreement, the City vacates any portion of the Public Way, the City shall reserve an easement for public utilities within that vacated portion, pursuant to RCW 35 79 030, within which the Grantee may continue to operate the Grantee --------------------- Version Date: 2/4/08 PUBLIC WAY AGREEMENT Page 2 Facilities under the terms of this Public Way Agreement for the remaining period set forth under Section 3. G The Grantee agrees that its use of Public Way shall at all times be subordinated to and subject to the City and the public's need for municipal infrastructure, travel, and access to the Public Way, except as may be otherwise required by law H. Should the Grantee seek to use the Public Way to provide services, including Grantee Services, to City residents or businesses, the Grantee shall apply for, obtain, and comply with the terms of a City franchise agreement for such use. Section 3. Term of Agreement This Public Way Agreement shall run for a period of five (5) years, from the date of execution specified in Section 5. Section 4. Definitions For the purpose of this agreement: "ACC" means the Auburn City Code. "Construct or Construction" means removing, replacing, and repairing existing pipeline(s) and/or Facilities and may include, but is not limited to, digging and/or excavating for the purposes of removing, replacing, and repairing existing pipeline(s) and/or Facilities. "Emergency" means a condition of imminent danger to the health, safety and welfare of Persons or property located within the City including, without limitation, damage to Persons or property from natural consequences, such as storms, earthquakes, riots, acts of terrorism or wars. "Environmental Laws" means the Resource Conservation and Recovery Act, 42 U S.C. § 6901 et seq., the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U S.C. § 9601 et seq., the Hazardous Materials Transportation Act, 49 U.S.C. § 1801 et seq., the Federal Water Pollution Control Act, 33 U.S.C. § 1257 et seq., the Clean Air Act, 42 U.S.C. § 7401 et seq., the Toxic Substances Control Act, 15 U.S.0 § 2601 et seq., the Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. § 136 et seq., the Occupational Safety and Health Act, 29 U S.C. § 651 et seq., the Washington Hazardous Waste Management Act, Chapter 70.105 RCW; and the Washington Model Toxics Control Act, Chapter 70.105D RCW all as amended from time to time; and any other valid and applicable federal, state, or local statute, code, or --------------------- Version Date: 2/4/08 PUBLIC WAY AGREEMENT Page 3 ordinance or valid and applicable federal or state administrative rule, regulation, ordinance, order, decree, or other valid and applicable governmental authority as now or at any time hereafter in effect pertaining to the protection of human health or the environment. "Hazardous Substance" means any hazardous, toxic, or dangerous substance, material, waste, pollutant, or contaminant, including all substances designated under the Resource Conservation and Recovery Act, 42 U.S.C. § 6901 et seq., the Comprehensive Environmental Response, Compensation and Liability Act, 42 U S C. § 9601 et seq., the Hazardous Materials Transportation Act, 49 U S.C. § 1801 et seq., the Federal Water Pollution Control Act, 33 U.S.C. § 1257 et seq., the Clean Air Act, 42 U S C. § 7401 et seq., the Toxic Substances Control Act, 15 U S C. § 2601 et seq., the Federal Insecticide, Fungicide, Rodenticide Act, 7 U S C § 136 et seq., the Washington Hazardous Waste management Act, Chapter 70 105 RCW; and the Washington Model Toxics Control Act, Chapter 70.105D, RCW; all as amended from time to time; and any other federal, state, or local statute, code or ordinance or lawful rule, regulation, order, decree, or other governmental authority as now or at any time hereafter in effect. The term shall specifically include Petroleum and Petroleum Products. The term shall also be interpreted to include any substance which, after release into the environment, will or may reasonably be anticipated to cause death, disease, behavior abnormalities, cancer, or genetic abnormalities. "Maintenance or Maintain" shall mean examining, testing, inspecting, repairing, maintaining and replacing the existing Grantee Facilities or any part thereof as required and necessary for safe operation. "Petroleum or Petroleum Products" shall include, but is not limited to, motor gasoline, diesel fuel, and aviation jet fuel, and shall exclude natural gas. "Relocation" means permanent movement of Grantee facilities required by the City, and not temporary or incidental movement of such facilities, or other revisions Grantee would accomplish and charge to third parties without regard to municipal request. "Rights-of-Way" means the surface and the space above and below streets, roadways, highways, avenues, courts, lanes, alleys, sidewalks, easements, rights-of-ways and similar public properties and areas. Section 5. Acceptance of Public Way Agreement A. This Public Way Agreement, and any rights granted hereunder, shall not become effective for any purpose unless and until Grantee files with the City Clerk (1) the Statement of Acceptance, attached hereto as Exhibit "C," and incorporated by reference, (2) all verifications of insurance coverage specified -------------- ------ Version Date: 2/4/08 PUBLIC WAY AGREEMENT Page 4 under Section 15, and (3) the financial guarantees specified in Section 16 (collectively, 'Public Way Acceptance"). The date that such Public Way Acceptance is filed with the City Clerk shall be the effective date of this Public Way Agreement. B Should the Grantee fail to file the Public Way Acceptance with the City Clerk within 30 days after the effective date of the resolution approving the Public Way Agreement, said agreement will automatically terminate and shall be null and void. C The Grantee acknowledges and warrants by acceptance of the rights and privileges granted herein, that it has carefully read and fully comprehends the terms and conditions of this Public Way Agreement and is willing to and does accept all reasonable risks of the meaning of the provisions, terms and conditions herein. The Grantee further acknowledges and states that it has fully studied and considered the requirements and provisions of this Public Way Agreement, and believes that the same are consistent with all local, state and federal laws and regulations currently in effect, including the Federal Pipeline Safety Act (49 U S C. 60101 et seq.) and the Pipeline Safety Code of Federal Regulations (Title 49 CFR Part 186-199). If in the future the Grantee becomes aware that a provision of this Public Way Agreement may be unlawful or invalid, it will not use such potential invalidity to unilaterally ignore or avoid such provision. Instead, the Grantee will promptly advise the City of the potential invalidity or illegality, and the parties will meet within thirty (30) days and endeavor jointly to cure the invalidity or illegality Section 6. Construction and Maintenance A. The Grantee shall apply for, obtain, and comply with the terms of all permits required under ACC Chapter 12.24 for any work done upon Grantee Facilities. Grantee shall comply with all applicable City, State, and Federal codes, rules, regulations, and orders in undertaking such work, which shall be done in a thorough and proficient manner B. Grantee agrees to coordinate its activities with the City and all other utilities located within the Public Way C The City expressly reserves the right to exercise its police powers to regulate the manner in which Grantee may perform excavation or other work within the Public Way and may from time to time, pursuant to the applicable sections of this Public Way Agreement, require the removal, relocation and/or replacement thereof in the public interest and safety at the expense of the Grantee, provided such exercise shall not be in conflict with Federal regulations 49 CFR Part 195. ------------ -------- Version Date: 2/4108 PUBLIC WAY AGREEMENT Page 5 D Before commencing any work within the Public Way, the Grantee shall comply with the One Number Locator provisions of RCW Chapter 19 122 to identify existing utility infrastructure. E. Within thirty (30) days of completing any work within the Public Way, the Grantee shall provide updated and corrected as-built drawings and a survey showing the location, depth and other characteristics of the Grantee Facilities within the Public Way Agreement Area. F Nothing in this Public Way Agreement shall be deemed to impose any duty or obligation upon the City to determine the adequacy or sufficiency of Grantee's plans and designs or to ascertain whether Grantee's proposed or actual construction, testing, maintenance, repairs, replacement or removal is adequate or sufficient or in conformance with the plans and specifications reviewed by the City Section 7 Repair and Emergency Work A. In the event of an emergency, the Grantee may commence such repair and emergency response work as required under the circumstances, provided that the Grantee shall immediately notify the Valley Regional Fire Authority of the situation by means of a call to the 911 dispatch system. Grantee shall also notify the City Right-of-Way Manager in writing as promptly as possible, before such repair or emergency work commences, or as soon thereafter as possible, if advance notice is not practicable. The City may act, at any time, without prior written notice in the case of emergency, but shall notify the Grantee as promptly as possible under the circumstances. B. Grantee agrees to provide the Valley Regional Fire Authority and the City Office of Emergency Management, on request, information regarding Grantee's Facilities and Emergency Response Planning. Section 8. Damages to City and Third-Party Property Grantee agrees that should any of its actions under this Public Way Agreement impairs or damages any City property, survey monument, or property owned by a third-party, Grantee will restore, at its own cost and expense, said property to a safe condition. Such repair work shall be promptly performed and completed to the satisfaction of the City Engineer Section 9. Location Preference A. Any structure, equipment, appurtenance or tangible property of a privately-owned utility, other than the Grantee's, which was installed, constructed, completed or in place prior in time to Grantee's application for a permit to construct - -------------------- Version Date: 2/4/08 PUBLIC WAY AGREEMENT Page 6 or repair Grantee Facilities under this Public Way Agreement shall have preference as to positioning and location with respect to the Grantee Facilities. However, to the extent that the Grantee Facilities are completed and installed prior to new or additional structures, equipment, appurtenances or tangible property of an earlier privately-owned utility being installed or completed, then the Grantee Facilities shall have priority These rules governing preference shall continue in the event of the necessity of relocating or changing the grade of any such City road or right-of-way A relocating utility shall not necessitate the relocation of another utility that otherwise would not require relocation. This Section shall not apply to any City facilities or utilities that may in the future require the relocation of Grantee Facilities. Such relocations shall be governed by Section 11 B. Grantee shall locate its pipeline in accordance with federal pipeline regulations, and shall maintain spacing from water pipes and other utilities as required under 49 CFR 195.250. Section 10. Grantee Information A. Grantee agrees to supply, at no cost to the City, reasonable information regarding the location and general description of Grantee's Facilities within the City to the Director of Public Works, or Right-of-Way Manager Said information shall include, at a minimum; as-built drawings of Grantee Facilities; installation inventory; and maps and plans showing the location of existing or planned facilities within the City Said information may be requested either in hard copy and/or electronic format, compatible with the City's data base system, as now or hereinafter existing, including the City's geographic information Service (GIS) data base. Grantee shall keep the Right-of-Way Manager informed of its long- range plans for coordination with the City's long-range plans. B. The parties understand that Washington law limits the ability of the City to shield from public disclosure any information given to the City Accordingly, the parties agree to work together to avoid disclosures of information which would result in economic loss or damage to Grantee because of mandatory disclosure requirements to third persons. The City shall give Grantee reasonable notice of public records requests for Grantee documents, and Grantee shall indemnify and hold harmless the City for any loss or liability for costs for attorneys fees because of non-disclosures requested by Grantee or enjoined by a court pursuant to a motion brought by the Grantee under Washington's open public records law Section 11 Relocation, of Grantee Facilities A. Except as otherwise so required by law, Grantee agrees to relocate, remove, or reroute its facilities at its sole expense and liability and at no expense or liability to the City, or as further provided by Title 20 ACC, as ordered --------------------- Version Date: 214108 PUBLIC WAY AGREEMENT Page 7 by the City Engineer, and upon three hundred sixty (360) days written notice from the City Pursuant to the provisions of Section 14, Grantee agrees to protect and save harmless the City from any customer or third-party claims for service interruption or other losses in connection with any such change, relocation, abandonment, or vacation of the Pubic Way B In the event that the Public Way shall become a Primary State Highway as provided by law, the State Department of Transportation may order the Grantee to perform or undertake, at its sole expense, changes to the location of Grantee Facilities so that the same shall not interfere with such state highway and so that such facilities shall conform to such new grades or routes as may be established. C If a readjustment or relocation of the Grantee Facilities is necessitated by a request from a party other than the City, that party shall pay the Grantee the actual costs thereof. However, in the event the City reasonably determines and notifies the Grantee that the primary purpose for requiring such changes to or relocation of the Grantee's facilities by a third party is to cause or facilitate the construction of an Improvement Project consistent with the City Capital Investment Plan, Transportation Improvement Program, or the Transportation Facilities Program, or other similar plan, then the Grantee shall change or otherwise relocate its Facilities at Grantee's sole cost, expense and risk. Section 12. Abandonment and or Removal of Grantee Facilities A. Within one hundred and eighty (180) days of Grantee's permanent cessation of use of the Grantee Facilities, or any portion thereof, the Grantee shall, at the City's discretion, either abandon in place or remove the affected facilities. B. In the event of the abandonment, relocation, or removal of all or a portion of the pipeline(s) or Facilities, Grantee shall, at its own cost, restore the Public Way to as good or better condition as it was in before the work began. C If the City and the Grantee agree that all or a portion of the Grantee Facilities should be abandoned in place, the Grantee may purge its Facilities and abandon them in place. D Grantee shall be responsible for the preparation and cost of any environmental review required for the abandonment, relocation, or removal of Grantee Facilities. The City's consent to the abandonment of Grantee Facilities in place shall not relieve the Grantee of the obligation and costs to remove or to alter such Facilities in the future in the event the City or other governmental entity with authority over the Grantee Facilities reasonably determines that --------------------- Version Date: 2/4/08 PUBLIC WAY AGREEMENT Page 8 removal or alterations is necessary or advisable for the health and safety of the public. E. The parties expressly agree that this Section shall survive the expiration, revocation or termination of this Public Way Agreement. Section 13. Undergrounding This Section intentionally left blank. Section 14. Indemnification and Hold Harmless A. The Grantee shall defend, indemnify, and hold the City and its officers, officials, agents, employees, and volunteers harmless from any and all costs, claims, injuries, damages, losses, suits, or liabilities of any nature including attorneys' fees arising out of or in connection with the Grantee's performance under this Public Way Agreement, except to the extent such costs, claims, injuries, damages, losses, suits, or liabilities are caused by the negligence of the City B The Grantee shall hold the City harmless from any liability arising out of or in connection with any damage or loss to the Grantee Facilities caused by maintenance and/or construction work performed by, or on behalf of, the City within the Public Way or any other City road, right-of-way, or other property, except to the extent any such damage or loss is directly caused by the negligence of the City, or its agent performing such work. C. The indemnification set forth in Section 14(A), shall include costs, claims, injuries, damages, losses, suits, or liabilities arising from (a) Grantee's violation of any Environmental Laws applicable to the Facilities or (b) from any release of a Hazardous Substance on or from the Facilities. This indemnity includes but is not limited to (a) liability for a governmental agency's costs of removal or remedial action for Hazardous Substances; (b) damages to natural resources caused by Hazardous Substances, including the reasonable costs of assessing such damages; (c) liability for any other person's costs of responding to Hazardous Substances; and (d) liability for any costs of investigation, abatement, correction, cleanup, fines, penalties, or other damages arising under any Environmental Laws; and (e) liability for personal injury, property damage, or economic loss arising under any statutory or common-law theory D The Grantee acknowledges that neither the City nor any other public agency with responsibility for fire fighting, emergency rescue, public safety or similar duties within the City has the capability to provide trench, close trench or confined space rescue. The Grantee, and its agents, assigns, successors, or contractors, shall make such arrangements as Grantee deems fit for the provision of such services. The Grantee shall hold the City harmless from any --------------------- Version Date: 2/4/08 PUBLIC WAY AGREEMENT Page 9 liability arising out of or in connection with any damage or loss to the Grantee for the City's failure or inability to provide such services, and, pursuant to the terms of Section 14(A), the Grantee shall indemnity the City against any and all third- party costs, claims, injuries, damages, losses, suits, or liabilities based on the City's failure or inability to provide such services. E. Should a court of competent jurisdiction determine that this Agreement is subject to RCW 4.24 115, then, in the event of liability for damages arising out of bodily injury to persons or damages to property caused by or resulting from the concurrent negligence of the Grantee and the City, its officers, officials, employees, and volunteers, the Grantee's liability hereunder shall be only to the extent of the Grantee's negligence. It is further specifically and expressly understood that the indemnification provided herein constitutes the City's and Grantee's waivers of immunity under Industrial Insurance, Title 51 RCW, solely for the purposes of the indemnifications set forth in this Section 14 This waiver has been mutually negotiated by the parties. The provisions of this section shall survive the expiration or termination of this Agreement. F Acceptance by the City of any work performed by the Grantee shall not be grounds for avoidance of this section. Section 15. Insurance A. The Grantee shall procure and maintain for the duration of the Agreement, insurance against claims for injuries to persons or damage to property which may arise from or in connection with the performance of the work hereunder by the Consultant, its agents, representatives, or employees in the amounts and types set forth below, 1 Automobile Liability insurance covering all owned, non- owned, hired, and leased vehicles with a minimum combined single limit for bodily injury and property damage of $2,000,000 per accident. Coverage shall be written on Insurance Services Office (ISO) form CA 00 01 or a substitute form providing equivalent liability coverage. If necessary, the policy shall be endorsed to provide contractual liability coverage. 2. Commercial General Liability insurance with limits no less than $100,000,000 each occurrence, $100,000,000 general aggregate and a $2,000,000 products-completed operations aggregate limit. Coverage shall be written on ISO occurrence form CG 00 01 or equivalent and shall cover liability arising from premises, operations, independent contractors, products-completed operations, and personal injury and advertising injury and liability assumed under an insured contract. Aggregate limit of $100,000,000 can be satisfied by Excess Liability There shall be no endorsement or modification of the Commercial General Liability insurance for liability arising from explosion, collapse, or --------------------- Version Date: 214108 PUBLIC WAY AGREEMENT Page 10 underground property damage. The City shall be named as an additional insured under the Grantee's Commercial General Liability insurance policy with respect to the work performed under this Public Way Agreement using ISO Additional Insured Endorsement CG 20 10 10 01 and Additional Insured- Completed Operations endorsement CG 20 37 3. Workers' Compensation coverage as required by the Industrial Insurance laws of the State of Washington. Employer's Liability $2,000,000 per occurrence (Stop Gap Liability included in Employer's Liability ) B. The insurance policies are to contain, or be endorsed to contain, the following provisions for Automobile Liability, and Commercial General Liability insurance: 1 The Grantee's insurance coverage shall be primary insurance as respects the City Any insurance, self-insurance, or insurance pool coverage maintained by the City shall be in excess of the Grantee's insurance and shall not contribute with it. 2. The Grantee's insurance shall be endorsed to state that coverage shall not be cancelled by either party except after thirty (30) days' prior written notice has been given to the City C. Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M. Best rating of not less than A:VII, or equivalent D Verification of Coverage. Grantee shall furnish the City with original certificates and a copy of amendatory endorsements, including but not necessarily limited to the additional insured endorsement or equivalent, evidencing the insurance requirements of the Consultant before commencement of the work. E. Any deductibles shall be the sole responsibility of the Grantee. The insurance certificate required by this Section shall contain a clause stating that coverage shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the aggregate limits of the insurer's liability F Grantee's maintenance of insurance as required by this Agreement shall not be construed to limit the liability of Grantee to the coverage provided by such insurance, or otherwise limit the City's recourse to any remedy to which the City is otherwise entitled at law or in equity G Section 14, Indemnification and Hold Harmless, and this Section 15, Insurance, shall survive the termination of this Agreement and shall continue --------------------- Version Date: 2/4108 PUBLIC WAY AGREEMENT Page 11 for as long as Grantee Facilities remain operating in the Public Way or until a new Public Way Agreement supersedes this Agreement. Section 16. Performance Security Pursuant to ACC Chapter 20.10, the Grantee shall provide the City with a security bond as specified in ACC Section 20 10.250, in a form and substance acceptable to the City, securing the Grantee's faithful compliance with the terms of this Public Way Agreement. Such guarantees shall be in the amount of fifty thousand dollars ($50,000 00). Section 17 Successors and Assignees A. All the provisions, conditions, regulations and requirements herein contained shall be binding upon the successors, assigns of, and independent contractors of the Grantee, and all rights and privileges, as well as all obligations and liabilities of the Grantee shall inure to its successors, assignees and contractors equally as if they were specifically mentioned herein wherever the Grantee is mentioned. B. This public way agreement shall not be leased, assigned or otherwise alienated without the express consent of the City by resolution, which approval shall not be unreasonably withheld. C. Grantee and any proposed assignee or transferee shall provide and certify the following to the City not less than 120 days prior to the proposed date of transfer (a) Complete information setting forth the nature, term and conditions of the proposed assignment or transfer; (b) All information required by the City of an applicant for a Public Way Agreement with respect to the proposed assignee or transferee; and, (c) An application fee which shall be set by the City, plus any other costs actually and reasonably incurred by the City in processing, and investigating the proposed assignment or transfer Section 18. Dispute Resolution A. In the event of a dispute between the City and the Grantee arising by reason of this Agreement, the dispute shall first be referred to the operational officers or representatives designated by Grantor and Grantee to have oversight over the administration of this Agreement. The officers or representatives shall meet within fifteen (15) calendar days of either party's request for a meeting, whichever request is first, and the parties shall make a good faith effort to achieve a resolution of the dispute. B. If the parties fail to achieve a resolution of the dispute in this manner, either party may then pursue any available judicial remedies. This --------------------- Version Date: 214/08 PUBLIC WAY AGREEMENT Page 12 Public Way Agreement shall be governed by and construed in accordance with the laws of the State of Washington. In the event any suit, arbitration, or other proceeding is instituted to enforce any term of this Agreement, the parties specifically understand and agree that venue shall be exclusively in King County, Washington. The prevailing party in any such action shall be entitled to its attorneys' fees and costs of suit, which shall be fixed by the judge hearing the case, and such fees shall be included in the judgment. Section 19. Enforcement and Remedies A. If the Grantee, shall willfully violate, or fail to comply with any of the provisions of this Public Way Agreement through willful intent or gross negligence, or should it fail to heed or comply with any notice given to Grantee under the provisions of this agreement, the City may, at its discretion, provide Grantee with written notice to cure the breach within thirty (30) days of notification If the City determines the breach cannot be cured within thirty days, the City may specify a longer cure period, and condition the extension of time on Grantee's submittal of a plan to cure the breach within the specified period, commencement of work within the original thirty day cure period, and diligent prosecution of the work to completion. If the breach is not cured within the specified time, or the Grantee does not comply with the specified conditions, the Grantee, and its successors or assignees, shall forfeit all rights conferred hereunder, and the Public Way Agreement may be revoked or annulled by the City with no further notification. B. Should the City determine that Grantee is acting beyond the scope of permission granted herein for Grantee Facilities and Grantee Services, the City reserves the right to cancel this Public Way Agreement upon thirty days (30) written notice to Grantee and require the Grantee to apply for, obtain, and comply with all applicable City permits, franchises, or other City permissions for such actions, and if the Grantee's actions are not allowed under the Auburn City Code, to compel Grantee to cease such actions. Section 20. Compliance with Laws and Regulations A. This Public Way Agreement is subject to, and the Grantee shall comply with all applicable federal and state or City laws, regulations and policies (including all applicable elements of the City's comprehensive plan), in conformance with federal laws and regulations, affecting performance under this Public Way Agreement. Furthermore, notwithstanding any other terms of this agreement appearing to the contrary, the Grantee shall be subject to the police power of the City to adopt and enforce general ordinances necessary to protect the safety and welfare of the general public in relation to the rights granted in the Public Way, provided that said ordinances are not in conflict with federal pipeline safety regulations. --------------------- Version Date: 2/4/08 PUBLIC WAY AGREEMENT Page 13 B. The City reserves the right at any time to amend this Public Way Agreement to conform to any hereafter enacted, amended, or adopted mandatory federal or state statute or regulation relating to the public health, safety, and welfare, or relating to roadway regulation, or a City Ordinance enacted pursuant to such federal or state statute or regulation upon providing Grantee with thirty (30) days written notice of its action setting forth the full text of the amendment and identifying the statute, regulation, or ordinance requiring the amendment. Said amendment shall become automatically effective upon expiration of the notice period unless, before expiration of that period, the Grantee makes a written call for negotiations over the terms of the amendment. If the parties do not reach agreement as to the terms of the amendment within thirty (30) days of the initial notice, the City may enact the proposed amendment, by incorporating the Grantee's concerns to the maximum extent the City deems possible. C The City may terminate this Public Way Agreement upon thirty (30) days written notice to the Grantee, if the Grantee fails to comply with such amendment or modification. Section 21 License, Tax and Other Charges This Public Way Agreement shall not exempt the Grantee from any future license, tax, or charge which the City may hereinafter adopt pursuant to authority granted to it under state or federal law for revenue or as reimbursement for use and occupancy of public ways. Section 22. Consequential Damages Limitation Notwithstanding any other provision of this Agreement, in no event shall either party be liable for any special, incidental, indirect, punitive, reliance, consequential or similar damages. Section 23. Severability If any portion of this Public Way Agreement is deemed invalid, the remainder portions shall remain in effect. Section 24. Titles The section titles used herein are for reference only and should not be used for the purpose of interpreting this Public Way Agreement. --------------------- Version Date: 2/4108 PUBLIC WAY AGREEMENT Page 14 sI DATED and SIGNED this day �;of, -- 4ze,22 --, , 20gf CITY OF AUBURN PETER B. LEWIS MAYOR ATTEST n Da ' Ile E. Daskam, City Clerk APPROVED AS TO FORM: aniel B. e City Attorney --------------------- Version Date: 2/4/08 PUBLIC WAY AGREEMENT Page 15 N ��� , ILL111lock I II Y F I __ `� _ � S J'F Legend S.zrreh 0 Hand valve Intersection Point Mainline pipeline Dmin one ;fY Itch School Road Hydro City name mileposts /rX Wash-Ore. Parcel Indian Reserv.Sdry. 12 0 Auburn boundary i 130 Mile Post 7,7 N" waat,vaneyXwy It Kin coon ty 'k HiAh.1v MIL Bleci 54TH Nw. Auburn 83 SETH AV *v • 7q N, 5 47TH AV ST 123 44th Ave. 4 L-�Wii Deli d, 8 316TH ST 12a s -a Exhibit A EXHIBIT B A 14 inch diameter pipeline for the interstate transportation of petroleum products. No local service is provided. The pipeline location is shown in Exhibit A. EXHIBIT "C STATEMENT OF ACCEPTANCE Olympic Pipe Line Company, for itself, its successors and assigns, hereby accepts and agrees to be bound by all lawful terms, conditions and provisions of the Public Way Agreement attached hereto and incorporated herein by this reference. OLYMPIC PIPE LINE COMPANY By- __ �1�11.C c, l . Date: 9- Name: Spec. ilia � v 7 Title: V\'C ,1- STATE OF ) )ss. COUNTY OF ) On this =[ day of 2008, before me the undersigned, a Notary Public in and for the State to oT9 duly commissioned and sworn, personally appeared, - 'aWy7 F_• of Olympic Pipe Line Company, the company that executed the within and for going instrument, and acknowledged the said instrument to be the free and voluntary act and deed of said company, for the uses and purposes therein mentioned, and on oath stated that he/she is authorized to execute said instrument. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal on the date hereinabove set forth. /) y ��\N}U�111 7llr` (l/- iEJ�t�6CU ^�ESO @II1447'' Signature J = o: 70T 1R Qm s s NOTARY PUBLIC in and the State of residing at `,eatttt MY COMMISSION EXPIRES. 01 J -- ----------------- Version Date: 11/08/2007 PUBLIC WAY AGREEMENT Page 16