HomeMy WebLinkAboutITEM VIII-B-1
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AGENDA BILL APPROVAL FORM
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H WGTO N
Aqenda Subiect Date:
Resolution No. 4435 December 8, 2008
Department: Attachments: Budget Impact:
Public Works Resolution No 4435, Public Way $0
Agreement #08-27 and Exhibit "B"
Location Ma
Administrative Recommendation:
City Council adopt Resolution No. 4435.
Backaround Summary:
Resolution No. 4435 approves the NW Pipeline G.P. Public Way Agreement #08-27. Per Auburn City
Code Chapter 20.04.010, a public way agreement shall be required of any commercial utility or
telecommunications provider who desires to occupy specific public ways of the city for the sole purpose of
providing commercial utility or telecommunications services to persons or areas outside the city.
NW Pipeline G.P. currently operates a high pressure natural gas pipeline through Auburn. They have
applied to the City for a Public Way Agreement for the right of entry, use, and occupation of certain public
rights-of-way within the City of Auburn for two existing natural gas pipeline facilities, a 30-inch and a 36-
inch pipeline. The majority of the 30-inch pipeline was constructed in 1971, except approximately 4,500'
that was constructed in 2005. The 36-inch pipeline was constructed in 2003. These pipelines are for
transmission purposes and do not service area residents. There are approximately 703 parcels located
inside the Auburn city limits within a quarter mile of those portions of the pipeline subject to the Public
Way Agreement. Approximately 405 of those parcels have a residential address associated with them.
W0120-2 03.10.9
Reviewed by Council & Committees: Reviewed by Departments & Divisions:
❑ Arts Commission COUNCIL COMMITTEES: ❑ Building ❑ M&O
❑ Airport ❑ Finance ❑ Cemetery ❑ Mayor
❑ Hearing Examiner ❑ Municipal Serv. ❑ Finance ❑ Parks
p Human Services p Planning & CD ❑ Fire ❑ Planning
❑ Park Board OPublic Works 0 Legal ❑ Police
❑ Planning Comm. ❑ Other ~ Public Works ❑ Human Resources
Action:
Committee Approval: ❑Yes ❑No
Council Approval: ❑Yes ❑No Call for Public Hearing
Referred to Until
Tabled Until
Councilmember: Wa ner Staff: Dowd
Meetin Date: Janua 20, 2009 Item Number: VIII.B.1
AU$URN* MORE THAN YC7U IMAGINED
Aqenda Subject Date:
Resolution No. 4435 1/14/2009
The Public Way Agreement covers these existing facilities in Auburn and requires the applicant to carry a
minimum of $100,000,000 in insurance. Additionally, the agreement requires that the applicant maintain
a security bond with the City ensuring that they will remain in compliance with the terms of the agreement.
As a provision of the public way agreement, upon the request of the City, Northwest Pipeline G.P. shall
meet with the VRFA, the Auburn Police Department and the City's Emergency Management Office to
coordinate emergency management operations and at least once a year, at the City's request, participate
in emergency preparedness drills or planning sessions. Northwest Pipeline G.P. shall also provide to the
City, upon acceptance of this agreement, a copy of its emergency response plans and procedures.
Please note that under federal law the City has no authority over the safety and maintenance of the
pipelines, which is regulated by the U.S. Department of Transportation Pipeline Safety Regulations and
Federal Energy Regulatory Commission (FERC). The City's authority over the pipelines is strictly limited
to regulating their physical presence in the City's rights-of-way.
Page 2 of 2
RESOLUTION NO. 4435
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 NORTHWEST PIPELINE G.P.
WHEREAS, Northwest Pipeline GP 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 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 January 20, 2009, the Auburn City Council conducted a
public hearing to take public comments on Northwest Pipeline G.P. Company's
application; and
WHEREAS, the City has reviewed Northwest Pipeline G.P. Company's
application and the information received at the public hearing and has
determined that the location of Northwest Pipeline G.P. 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. 4435
December 1, 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 befinreen the City of
Auburn and Northwest Pipeline G.P. 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 this day of , 2008.
CITY OF AUBURN
PETER B. LEWIS
MAYOR
ATTEST:
Danielle E. Daskam, City Clerk
Resolution No. 4435
December 1, 2008
Page 2 of 3
APP/ROVED AS TO FORM:
,
iel B. F#eid;--City A orney Resolution No. 4435
December 1, 2008
Page 3 of 3
CITY OF AUBURN AGREEMENT
WITH NORTHWEST PIPELINE G.P.
This Agreement is entered into by and between the City of Auburn, a Washington
municipal corporation ("City") and Northwest Pipeline G.P., a Delaware general partnership
("NWP").
WHEREAS, NWP 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 NWP's application and determined that the location
of NWP'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:
That the right, privilege, authority, and non-exclusive Public Way Agreement be, and the
same are hereby given and granted to NWP, its successors and assigns to install, construct,
operate, repair, relocate, maintain, and remove natural gas Facilities in, upon, under, along, and
across certain roads in the City defined below as the Public Way.
This Agreement is granted upon the following express terms and conditions, to-wit:
Section 1. Definitions. Where used in this Public Way Agreement the following terms
shall mean:
1.1 "Agreement" means this Public Way Agreement.
1.2 "City" means the City of Auburn, a municipal corporation of the State of
Washington, and its respective successors and assigns.
1.3 "NWP Facilities" means, collectively, any and all natural gas systems owned or
operated by NWP, including but not limited to gas pipes, pipelines, mains,
laterals, conduits, feeders, regulators, valves, meters meter-reading devise,
fixtures, communication systems, and any and all other equipment appliances,
attachments, appurtenances and other items necessary, convenient, or in any way
appertaining to any and all of the foregoing for the purpose of transmission of
natural gas, whether the same be located over or under ground.
1.4 "Public Way" means the below listed rights-of-way for public roads, streets,
avenues, alleys, and highways of the City as now laid out, platted, dedicated,
acquired or improved as shown on "Exhibit B":
Public Way Agreement No. 08-27
January 5, 2009
Page 1 of 20
Academy Drive
Lemon Tree Lane
Auburn Way South (Hwy. 164)
BridgetAvenue S.E.
53'd Street S.E.
Randall Avenue S.E.
Lake Tapps Parkway
65`h Street S.E./Grady Ct. S.E.
Elaine Ct SE
Sumner Tapps Highway E.
Old Man Thomas Road
1.5 Hazardous Substance shall specifically include, but shall not be limited to,
petroleum and petroleum products and their by-products, residue, and remainder
in whatever form or state.
1.6 "NWP" means Northwest Pipeline G.P., a Delaware general partnership and its
respective successors and assigns.
1.7 "Operate" or "Operations" shall mean the operation, use, and maintenance of
NWP Facilities, pursuant to the terms of this Agreement.
1.8 "Party" or "Parties" means collectively the City and NWP, and individually either
the City or NWP.
1.9 "Public Works Project" means, any City capital improvement or the construction,
relocation, expansion, repair, maintenance, or removal of any part of the Public
Way or City-owned facilities located on or in the Public Way for: parks; streets;
sidewalks; curbs; pedestrian and/or vehicle traffic; sewers, storm water drains;
water facilities, and; City owned fiber optic cable, conduit or network facilities.
1.10 "Third Party" means any person, party, or entity other than the City and NWP.
1.11 "FERC" means the Federal Energy Regulatory Commission, or such other
successor regulatory agency having jurisdiction over interstate pipeline
companies.
Section 2. Grant of Agreement
2.1 Pursuant to the laws of the State of Washington, the City hereby grants to NWP,
subject to the terms and conditions as set forth herein, a Public Way Agreement
for a period of five (5) years commencing upon the effective date of this
Agreement. This Agreement is granted upon the express condition that within
thirty (30) days after the adoption of this Agreement by the Auburn City Council,
NWP shall file with the City Clerk a written acceptance of the same in the form
Public Way Agreement No. 08-27
January 5, 2009
Page 2 of 20
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set forth in Exhibit A attached hereto and incorporated by reference. If NWP fails
to do so within the time frame above, this Agreement shall be null and void.
This Agreement may be renewed for four additional five year periods upon
submission and approval of the application specified under ACC 20.04.120, as it
now exists or is amended, within the timeframe set forth therein 180 days prior to
expiration of the then-current term, or such lesser timeframe as may be provided.
Any materials submitted by the NWP for a previous application may be
considered by the City in reviewing a current application, and the NWP shall only
submit those materials deemed necessary by the City to address changes in the
NWP Facilities or NWP Services, or to reflect specific reporting periods
mandated by the ACC.
2.2 This Agreement is intended to convey only a limited right and interest and is not a
warranty of title or interest in the City streets or rights-of-way.
2.3 NWP shall, in carrying out activities under the rights, privileges, and authority
granted by this Agreement comply with the provisions of all applicable City
codes, ordinances, regulations, standards, procedures, permits, or policies
currently in effect or subsequently amended or enacted, except as said such laws,
City codes, ordinances, regulations, standards, procedures, permits, policies, or
laws may be inconsistent with or preempted or superseded by applicable federal
law.
2.4 NWP shall, in carrying out activities under the rights, privileges, and authority
granted by this Agreement, comply with all applicable state and federal laws and
regulations currently in effect or subsequently amended or enacted and with all
state laws, except as such state laws may be inconsistent with or preempted or
superseded by federal law.
Section 3. Non-Public Way Area City Property
3.1 This Agreement shall not convey any right to NWP to install NWP Facilities on
or to otherwise use City-owned or leased properties, easements, or rights-of-way,
outside the Public Way.
Section 4. Nonexclusive Agreement
4.1 This Agreement is not, and shall not be deemed to be, an exclusive Public Way
Agreement. This Agreement shall not in any manner prohibit the City from
granting other and further Public Way Agreements or Franchises upon, under, and
across the Public Way that do not hinder or interfere with NWP's rights under this
Agreement. This Agreement shall not prohibit or prevent the City from using the
Public Way for any lawful purpose or affect the jurisdiction of the City over the
same or any part thereof.
Public Way Agreement No. 08-27
January 5, 2009
Page 3 of 20
Section 5. Installation/Noninterference of Facilities/Restoration
5.1 All work performed by NWP within the Public Way shall be performed in
accordance with the permit(s) issued by the City, in compliance with the City
Code and Standards, together with all applicable federal laws and regulations, and
the laws and regulations of the State of Washington, the provisions of any
applicable City codes, ordinances, regulations, standards and procedures as now
exist or as may be hereafter amended or superseded. Work within the Public Way
which directly affects NWP's construction, operation, and maintenance of NWP
Facilities shall be performed in accordance with Federal law and regulation.
5.2 NWP Facilities shall be located and maintained within the Public Way so as not to
interfere with the free passage of pedestrian and/or vehicle traffic therein, or with
the reasonable ingress or egress to the properties abutting the Public Way as they
exist at the time of installation of the NWP Facilities.
5.3 NWP shall restore the surface of the Public Way that is disturbed or damaged by
the performance of this Agreement to at least the same condition as existed
immediately prior to any such work. The City shall have final approval of the
condition of the Public Way after restoration pursuant to the provisions of
applicable City codes, ordinances, regulations, standards, policies, and procedures
as now exist or as may be hereafter amended or superseded.
5.4 The City may at any time perform or have performed any and all work that it
considers necessary to restore to a safe condition any area within the Public Way
disturbed by NWP in the performance of this Agreement. NWP shall pay all
reasonable costs of such work upon demand of the City.
5.5 NWP shall post a performance bond in the amount of $2,000,000 (two million
dollars) to ensure satisfactory restoration of the Public Way prior to the initiation
of NWP's work therein.
5.6 Pursuant to ACC Chapter 20.10, the NWP shall provide the City with a security
bond as specified in ACC Section 20.10.250, in a fortn and substance acceptable
to the City, securing NWP'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).
5.7 All survey monuments which are disturbed or displaced by NWP in its
performance of any work under this Agreement shall be referenced and restored
by NWP, as per WAC 332-120, as from time to time amended, and all pertinent
federal, state, and local standards and specifications.
5.8 In the event NWP permanently ceases use of any of the NWP Facilities within the
Public Way, NWP shall (subject to any necessary approval(s) and/or order(s) to
be provided by the Federal Energy Regulatory Commission concerning
abandonment) within one hundred and eighty (180) days or within such additional
Public Way Agreement No. 08-27
January 5, 2009
Page 4 of 20
time as is agreed to between the parties after such permanent cessation of use,
remove such Facilities at the sole cost and expense of NWP; provided that with
the express written consent of the City, NWP may leave such Facilities in place
subject to the conditions set forth in this section. Any such Facilities to be left in
place shall be made inert by purging all natural gas from such Facilities (including
displacement of natural gas with an appropriate inert gas) and disconnecting and
sealing such Facilities, all in compliance with applicable regulations and industry
standards. The City's consent shall not relieve NWP of the obligation and/or
costs to subsequently remove or alter such Facilities in the event the City
reasonably determines that such removal or alteration is necessary or advisable
for the health and safety of the public, in which case NWP shall perform such
work at no cost to the City. The obligations contained in this Section shall
survive the expiration, revocation, or termination of this Agreement.
Section 6. Relocation of Facilities
6.1 Whenever the City causes the construction of any Public Works Project within the
Public Way and such construction necessitates the relocation of NWP's Facilities
from their existing location to a new location within the Public Way, such
relocation shall be accomplished by NWP at no cost to the City. Such alternate
location for relocation of NWP's facilities shall be determined and approved
jointly by the City and NWP at no cost to the City. To the extent practicable, the
City may (but is not required to) provide an alternate location for such relocation
of NWP's facilities at no additional cost to NWP.
6.2 In the event an emergency posing a threat to public safety or welfare requires the
relocation of NWP's Facilities within the Public Way, the City shall give NWP
notice of the emergency as soon as reasonably practicable. Upon receipt of such
notice from the City (and subject to the issuance of any necessary order(s) of the
Federal Energy Regulatory Commission), NWP shall endeavor to respond as soon
as reasonably practicable to relocate the affected Facilities.
6.3 Whenever any Third Party requires and requests the relocation of NWP's
Facilities to accommodate work of such Third Party within the Public Way, NWP
shall have the right as a condition of any such relocation to require payment by
the Third Party to NWP, at a time and upon terms acceptable to NWP, for any and
all costs and expenses incurred by NWP in the relocation of NWP's Facilities.
Any contractor doing work pursuant to contract with the City shall not be
considered a Third Party for purposes of this section.
6.4 Any condition or requirement imposed by the City upon any Third Party
(including, but not limited to, any condition or requirement imposed pursuant to
any contract or in conjunction with approvals or permits obtained pursuant to any
zoning, land use, construction or other development regulation) which requires
the relocation of NWP's Facilities within the Public Way shall be a condition or
requirement causing relocation of NWP's Facilities to occur subject to the
Public Way Agreement No. 08-27
January 5, 2009
Page 5 of 20
provisions of Section 6.3 above; provided, however in the event the City
reasonably determines and notifies NWP that the primary purpose of imposing
such condition or requirement upon such Third party is to cause or facilitate the
construction of a Public Works Project to be undertaken within a segment of the
Public Way on the City's behalf and consistent with the City's Capital Facility
Plan; Transportation Improvement Program, then only those costs and expenses
incurred by NWP in reconnecting such relocated Facilities with other Facilities
shall be paid to NWP by such Third Party, and NWP shall otherwise relocate its
Facilities within such segment of the Public Way in accordance with this
Agreement.
6.5 As to any relocation of NWP's Facilities whereby the cost and expense thereof is
to be borne by NWP in accordance with this Section 6, NWP may, after receipt of
written notice requesting such relocation, submit in writing to the City alternatives
to relocation of its Facilities. Upon the City's receipt from NWP of such written
alternatives, the City shall evaluate such alternatives and shall advise NWP in
writing if one or more of such alternatives are suitable to accommodate the work
which would otherwise necessitate relocation of NWP's Facilities. In evaluating
such alternatives, the City shall give each alternative proposed by NWP full and
fair consideration with due regard to all facts and circumstances which bear upon
the practicality of relocation and alternatives to relocation. In the event the City
reasonably determines that such alternatives are not appropriate, NWP shall
relocate its Facilities as otherwise pravided in this Agreement.
6.6 Nothing in this Section 6 shall require NWP to bear any cost or expense in
connection with the relocation of any Facilities under benefit of easement
independent of this Agreement or other rights not arising under this Agreement,
nor shall anything in this Section 6 require the City to bear any such cost or
expense. Nothing in this Section 6 shall be construed to be a waiver of any right
of either NWP or the City to contest any claim or assertion by the other of
responsibility to pay such cost or expense.
Section 7. Vacation of City Streets
7.1 If, at any time, the City shall vacate any City street and/or right-of-way which is
subject to the rights granted by this Agreement and said vacation shall be for the
purpose of acquiring the fee or other property interest in said road and/or rights-
of-way for the us.e of the City, in either its proprietary or governmental capacity,
then the City Council may at its option and by giving two hundred fifty (250)
days' written notice to NWP, terminate this Agreement with reference to such
City road and/or rights-of-way so vacated, and the City shall not be liable for any
damages or loss to NWP by reason of such termination.
7.2 Prior to vacation of any City roads and/or rights-of-way, the City will make best
efforts to (but shall not be required to) grant to NWP an easement or other
Public Way Agreement No. 08-27
January 5, 2009
Page 6 of 20
property right sufficient in size and scope for the existing Facilities contained in
the vacated road and/or right-of-way.
Section 8. Records of Installation and Planning
8.1 Upon the City's request, NWP shall provide to the City copies of any plans
prepared by NWP for initial installation, improvements, relocations and
conversions to its Facilities within the Agreement Area; provided, however, any
such plans so submitted shall be for informational purposes only and shall not
obligate NWP to undertake any specific improvements within the Public Way, nor
shall such plan be construed as a proposal to undertake any specific improvements
within the Public Way. To the extent permitted by applicable law, and as
otherwise provided herein, the City will attempt to keep said plans confidential
and protected from public disclosure inasmuch as they contain Critical Energy
Infrastructure and Safety Sensitive Information which are protected from public
disclosure under federal law.
8.2 Upon the City's request, NWP shall provide to the City copies of available
drawings in use by NWP showing the location of its Facilities at specific locations
within the Public Way. As to any such drawings so provided, NWP does not
warrant the accuracy thereof and, to the extent the locations of Facilities are
shown, such Facilities are shown in their approximate location. To the extent
permitted by applicable law, and as otherwise provided herein, the City will
attempt to keep said drawings confidential and protected from public disclosure
inasmuch as they contain Critical Energy Infrastructure and Safety Sensitive
Information which are protected from Public disclosure under federal law..
8.3 Upon the City's reasonable request, in connection with the design of any Public
Works Project, NWP shall verify the location of its underground Facilities within
the Public Way by excavating (e.g., potholing) at no expense to the City. In the
event NWP performs such excavation, the City shall not require any restoration of
the disturbed area in excess of restoration to the same condition as existed
immediately prior to the excavation.
8.4 Any drawings and/or information concerning the location of NWP's Facilities
provided by NWP are considered to contain Critical Energy Infrastructure and
Safety Sensitive Information under federal law and shall be used by the City
solely for management of the Public Way. The City shall take all reasonable
steps necessary to prevent disclosure or dissemination of such drawings and/or
information to any Third Party, without the prior express consent of NWP, to the
extent permitted by law; provided that NWP expressly acknowledges and agrees
that all and/or parts of any and all such drawings and/or information received by
the City from NWP may be subject to public disclosure, pursuant to Washington
State law (including, RCW 42.56). While the City will take reasonable steps to
attempt to prevent the disclosure of drawings, information, and/or materials that
the City believes to be confidential, the City cannot and does not represent and/or
Public Way Agreement No. 08-27
January 5, 2009
Page 7 of 20
guarantee that any specific drawings and/or information will not be released, even
if the release of such drawings and/or information may be (or may arguably be)
exempt or otherwise preventable by law.
8.5 Notwithstanding the foregoing, nothing in this Section 9 is intended (nor shall be
construed) to relieve either party of their respective obligations arising under
applicable law with respect to determining the location of the NWP Facilities.
Section 9. Coordination, Shared Excavations
9.1 NWP and the City shall each exercise best reasonable efforts to coordinate any
construction work that either may undertake within the Public Way so as to
promote the orderly and expeditious performance and completion of such work as
a whole. Such efforts shall include, at a minimum, reasonable and diligent efforts
to keep the other party and other utilities within the Public Way informed of its
intent to undertake such construction work. NWP and the City shall further
exercise best reasonable efforts to minimize any delay or hindrance to any
construction work undertaken by themselves or other utilities within the Public
Way.
9.2 If, at any time or from time to time, either NWP or the City shall cause
excavations to be made within the Public Way, the party causing such excavation
to be made shall afford the other, upon receipt of a written request to do so, an
opportunity to use such excavation, provided that: (1) such joint use shall not
unreasonably delay the work of the party causing the excavation to be made; and
(2) such joint use shall be arranged and accomplished on terms and conditions
satisfactory to both Parties.
Section 10. Default; Remedies, and Dispute Resolution
10.1 If there is any dispute or alleged default with respect to performance under this
Agreement, the City shall notify NWP in writing, stating with reasonable
specificity the nature of the dispute or alleged default. Within seven (7) days of
its receipt of such notice, NWP shall provide written response to the City that
shall acknowledge receipt of such notice and state NWP's intentions with respect
to how NWP shall respond to such notice. NWP shall further have thirty (30)
daYs (the "cure period") from its receiPt of such notice to:
A. Respond to the City, contesting the City's assertion(s) as to the dispute or
any alleged default and requesting a meeting, or;
B. Resolve the dispute or cure the default, or;
C. Notify the City that NWP cannot resolve the dispute or cure the default
within thirty (30) days, due to the nature of the dispute or alleged default.
Notwithstanding such notice, NWP shall promptly take all reasonable
steps to begin to resolve the dispute or cure the default and notify the City
Public Way Agreement No. 08-27
January 5, 2009
Page 8 of 20
in writing and in detail as to the actions that will be taken by NWP and the
projected completion date. In such case, the City may set a meeting in
accordance with Section 10.2.
10.2 If any dispute is not resolved or any alleged default is not cured or a meeting is
not requested or set in accordance with Section 10.1, then the City shall promptly
schedule a meeting between the City and NWP to discuss the dispute or any
alleged default. The City shall notify NWP of the meeting in writing and such
meeting shall take place not less than ten (10) days after NWP's receipt of notice
of the meeting. Each Party shall appoint a representative who shall attend the
meeting and be responsible for representing the Party's interests. The
representatives shall exercise good faith efforts to resolve the dispute or reach
agreement on any alleged default and/or any corrective action to be taken. Any
dispute (including any dispute concerning the existence of or any corrective
action to be taken to cure any alleged default) that is not resolved within ten (10)
days following the conclusion of the meeting shall be referred by the Parties'
representatives in writing to the senior management of the Parties for resolution.
In the event senior management is unable to resolve the dispute within twenty
(20) days of such referral (or such other period as the Parties may agree upon),
each Party may pursue resolution of the dispute or any alleged default through
other legal means consistent with this Agreement. All negotiations pursuant to
these procedures for the resolution of disputes shall be confidential and shall be
treated as compromise and settlement negotiations for purposes of the state and
federal rules of evidence.
10.3 If, at the conclusion of the steps provided for in Section 11.1 and 11.2 above, the
City and NWP are unable to settle the dispute or agree upon the existence of a
default or the corrective action to be taken to cure any alleged default, the City or
NWP (as NWP may have authority to do so) may:
A. Take any enforcement or corrective action provided for in City code, as
from time to time amended; provided such action is not otherwise in
conflict with the provisions of this Agreement, and State and/or Federal
law, and/or;
B. Declare an immediate forfeiture of this Agreement for a breach of any
material obligations under this Agreement and/or;
C. Take such other action to which it is entitled under this Agreement or any
applicable law.
D. Pursue any Alternative Remedies as provided in Section 11.
10.4 In the event that any litigation should arise concerning the construction or
interpretation of any of the terms of this agreement, the venue of such action or
litigation shall be in the Superior Court of the State of Washington in and for the
County of King. This provision shall not affect NWP's right to bring necessary
Public Way Agreement No. 08-27
January 5, 2009
Page 9 of 20
actions in federal court under the Natural Gas Act or other federal law should it be
required to exercise its right of eminent domain or exercise other rights and
privileges granted to it under federal law. This Agreement shall be governed by
applicable Federal law, and the laws of the State of Washington.
10.5 Unless otherwise agreed by the City and NWP in writing, the City and NWP
shall, as may be reasonably practicable, continue to perform their respective
obligations under this Agreement during the pendency of any dispute.
Section 11. Alternative Remedies
No provision of this Agreement shall be deemed to bar the right of the City or
NWP to seek or obtain judicial relief from a violation of any provision of the
Agreement or any rule, regulation, requirement or directive promulgated
thereunder for non-arbitrable claims. Neither the existence of other remedies
identified in this Agreement nor the exercise thereof shall be deemed to bar or
otherwise limit the right of the City or NWP to recover monetary damages for
such violations by the other party, or to seek and obtain judicial enforcement of
the other Party's obligations by means of specific performance, injunctive relief
or mandate, or any other remedy at law or in equity.
Section 12. Indemnification
12.1 NWP shall indemnify, defend and hold the City, its appointed and elective
officials, agents, officers, employees, and volunteers harmless from and against
any and all claims, demands, liability, loss, cost, damage or expense of any nature
whatsoever including all costs and attorney's fees, made against the City, its
agents, officers or employees on account of injury, harm, death or damage to
persons or property which is caused by, in whole, or in part, and then only to the
extent of the negligent acts or omissions of NWP or its agents, servants,
employees, contractors, or subcontractors in the exercise of the rights granted to
NWP by this Agreement. Provided, however, such indemnification shall not
extend to that portion of any claims, demands liability, loss, cost, damage or
expense of any nature whatsoever including all costs and attorney's fees caused
by the sole negligence of the City, its appointed and elective officials, agents,
officers, employees, and volunteers.
12.2 NWP shall indemnify, defend and hold the City, its appointed and elective
officials, agents, officers, employees, and volunteers harmless from and against
any and all claims, demands, liability, loss, cost, damage or expense of any nature
whatsoever including all costs and attorney's fees, made against the City on
account of violation of any environmental laws applicable to the NWP Facilities,
or from any release of natural gas or Hazardous Substances on or from the NWP
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,
Public Way Agreement No. 08-27
January 5, 2009
Page 10 of 20
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. 12.3 NWP's indemnification obligations include assuming potential liability for actions
brought by NWP's own employees and the employees of NWP's agents,
representatives, contractors, and subcontractors even though NWP might be
immune under Title 51 RCW from direct suit brought by such employees. It is
expressly agreed and understood that this assumption of potential liability for
actions brought by the aforementioned employees is limited solely to claims
against the City arising by virtue of NWP's exercise of the rights set forth in this
Agreement. The obligations of NWP under this section have been mutually
negotiated by the Parties, and NWP acknowledges that the City would not enter
into this Agreement without NWP's waiver. To the extent required to provide this
indemnification and this indemnification only, NWP waives its immunity under
Title 51 RCW as provided in RCW 4.24.115.
12.4 In the event any claim is filed with the City, for which the City intends to assert its
rights under this Section 13, the City shall notify NWP thereof within a
reasonable time, and NWP shall have the right, at its election and at its sole cost
and expense, to settle and compromise such claim as it pertains to NWP's
responsibility to indemnify, defend and hold harmless the City, its agents, officers
or employees; provided that, prior to any settlement, NWP shall consult with the
City regarding any proposals or offers to settle the claim. In the event any suit or
action is started against the City for which the City intends to assert its rights
under this Section 13,,.the City shall likewise notify NWP thereof, and NWP shall
have the right, at its election and at its sole cost and expense, to settle and
compromise such suit or action, or defend the same at its sole cost and expense,
by attorneys of its own election, as it pertains to NWP's responsibility to
indemnify, defend and hold harmless the City, its agents, officers or employees;
provided that, prior to any settlement, NWP shall consult with the City regarding
any proposals or offers to settle the matter.
12.5 Acceptance by the City of any work performed by NWP under this Agreement
shall not be grounds for avoidance of this Section 13.
Section 13. Emergency Management, Leaks, Ruptures, and Emergency Response.
13.1 Annually, upon the request of the City, NWP shall meet with the Valley Regional
Fire Authority, the Auburn Police Department, and the City's Emergency
Management Office to coordinate emergency management operations and, at least
once a year, at the request of the City, NWP personnel shall actively participate
with the Valley Regional Fire Authority and the City in emergency preparedness
drills or planning sessions.
Public Way Agreement No. 08-27
January 5, 2009
Page 11 of 20
13.2 NWP shall have in place, at all times during the term of this Agreement, a system
for remotely monitoring pressures and flows across the Agreement Area. .
13.3 During the term of this Agreement, NWP shall have a written emergency response
plan and procedure for locating leaks and ruptures and for shutting down valves as
rapidly as possible.
13.4 Upon acceptance of this Agreement, NWP shall provide, for the City's approval
and acceptance, a copy of its emergency response plans and procedures,
including, but not limited to, emergency rupture response. If the parties disagree
as to the adequacy of NWP's emergency response plan, the parties will submit the
plan to independent, third party review. If the review recommends that NWP
, make modifications or additions to NWP's emergency response plan, NWP
covenants to consider said recommendations in good faith. If NWP declines to
follow the recommendations, NWP shall provide a written report to the City
explaining its reasoning for not following said recommendations. The parties
agree to comply with the dispute resolution provisions contained herein to resolve
any dispute over the whether to follow the recommendations. Upon completion
of the review of NWP's emergency plans and procedures set forth in this section,
NWP shall provide a copy of the plans and procedures to the City and to the
Valley Regional Fire Authority
13.5 NWP's emergency plans and procedures shall designate NWP's responsible local
emergency response officials and a direct twenty four (24) hour emergency
contact number for the control center operator. NWP shall, after being notified of
an emergency, cooperate with the City and make every effort to respond as soon
as possible to protect the public's health, safety and welfare.
13.6 NWP shall be solely responsible for all its necessary costs incurred in responding
to any leak, rupture or other release of natural gas from NWP's Facilities,
including, but not limited to, detection and removal of any contaminants from air,
earth or water, and all remediation costs.
13.7 If requested by the City in writing, NWP shall provide a written summary
concerning any leak or rupture within thirty (30) days of the event, including, but
not limited to, the leak or rupture's date, time, amount, location, response,
remediation and other agencies NWP has notified.
13.8 The City may request that any substantial leak or rupture be investigated by an
independent pipeline consultant selected by the City. NWP shall be solely
responsible for paying all of the consultant's costs and expenses incurred in
investigating the occurrence and reporting the findings. NWP shall meet and
confer with the independent consultant following the consultant's investigation to
address whether any modifications or additions to NWP's pipeline(s) and/or
Facilities may be warranted.
Public Way Agreement No. 08-27
January 5, 2009
Page 12 of 20
13.9 If the consultant recommends that NWP make modifications or additions to
NWP's pipeline(s) and/or Facilities, NWP covenants to consider said
recommendations in good faith. If NWP declines to follow the consultant's
recommendations, NWP shall provide a written report to the City explaining its
reasoning for not following said recommendations. The parties agree to comply
with the dispute resolution provisions contained herein to resolve any dispute over
whether to follow the consultant's recommendations.
Section 14. Assignment of Agreement
NWP, and its successors in interest, may not assign or otherwise transfer its
rights, privileges, and authority conferred by this Agreement without the prior
written authorization and approval of the City, except in the event that an entity
acquires the majority of NWP's assets or stock in a transaction and determines to
continue NWP's business as a going concern. The City hereby authorizes and
approves the mortgage by NWP (or NWP's successors in interest) of its rights,
privileges, and authority in and under this Agreement to the trustee for its
bondholders.
Section 15. Severability and Survival
15.1 If any term, provision, condition or portion of this Agreement shall be held to be
invalid such invalidity shall not affect the validity of the remaining portions of
this Agreement which shall continue in full force and effect. The headings of the
sections and paragraphs of this Agreement are for convenience of reference only
and are not intended to restrict, affect or be of any weight in the interpretation or
construction of the provisions of such sections or paragraphs.
15.2 All provisions, conditions and requirements of this Agreement that may be
reasonably construed to survive the termination or expiration of this Agreement
shall survive the termination or expiration of the Agreement. Subject to Section
15 above, the Parties' respective rights and interests under this Agreement shall
inure to the benefit of their respective successors and assigns.
Section 16. Amendments to Agreement
16.1 This Agreement may be amended only by mutual agreement thereto, set forth in
writing in the form of an Agreement, signed by both Parties, which specifically
states that it is an amendment to this Agreement and is approved and executed in
accordance with the laws of the State of Washington. Without limiting the
generality of the foregoing, this Agreement (including, without limitation the
Sections addressing indemnification and insurance) shall govern and supersede
and shall not be changed, modified, deleted, added to, supplemented or otherwise
amended by any permit, approval, license, agreement or other document required
by or obtained from the City in conjunction with the exercise (or failure to
exercise) by NWP of any and all of its rights, benefits, privileges, obligations or
Public Way Agreement No. 08-27
January 5, 2009
Page 13 of 20
duties in and under this Agreement, unless such permit, approval, license,
agreement or other document specifically:
A. References this Agreement; and
B. States that it contains terms and conditions which change, modify, delete,
add to, supplement or otherwise amend the terms and conditions of this
Agreement.
Section 17. Relationship of the Parties
17.1 Nothing in this Agreement shall be construed to create or confer any right or
remedy upon any person(s) other than the City and NWP. No action may be
commenced or prosecuted against any Party by any Third Party claiming as a
Third Party beneficiary of this Agreement. This Agreement shall not release or
discharge any obligation or liability of any Third Party to either Party.
17.2 Nothing contained in this Agreement shall be construed to create an association,
trust, partnership, agency relationship, or joint venture or to impose a trust,
partnership, or agency duty, obligation or liability on or with regard to any party.
Each party shall be individually and severally liable for its own duties,
obligations, and liabilities under this Agreement.
17.3 NWP accepts any privileges granted by the City to the Public Way and public
Rights-of-Way in an "as is" condition. NWP agrees that the City has never made
any representations, implied or express warranties or guarantees as to the
suitability, security or safety of NWP's location of facilities or the facilities
themselves in public property or rights of way or possible hazards or dangers
arising from other uses of the public rights of way or other public property by the
City or the general public. NWP shall remain solely and separately liable for the
function, testing, maintenance, replacement and/or repair of the pipeline or other
activities permitted under this Agreement.
17.4 Except as specifically provided herein, this Agreement shall not create any duty
of the City or any of its officials, employees or agents and no liability shall arise
from any action or failure to act by the City or any of its officials, employees or
agents in the exercise of powers reserved to the City. Further, this Agreement is
not intended to acknowledge, create, imply or expand any duty or liability of the
City with respect to any function in the exercise of its police power or for any
other purpose. Any duty that may be deemed to be created in the City shall be
deemed a duty to the general public and not to any specific party, group or entity.
Section 18. Insurance
18.1 NWP shall procure and maintain far the duration of the Agreement, insurance, or
provide self-insurance, against all claims for injuries to persons or damages to
property which may arise from or in connection with the exercise of the rights,
Public Way Agreement No. 08-27
January 5, 2009
Page 14 of 20
privileges and authority granted hereunder to NWP, its agents, representatives or
employees. NWP shall provide evidence of self-insurance and/or an insurance certificate, that, excepts as respects the Workers' Compensation insurance, names
the City, its officers, elected officials, agents, employees, representatives,
engineers, consultants and volunteers as additional insured's, to the City prior to
the commencement of any work or installation of any Facilities pursuant to this
Agreement. Such self-insurance and/or insurance certificate shall evidence the
following minimum insurance. All required insurance shall be obtained from
companies rated "A-" or better in "A.M. Best's Insurance Guide," or an
equivalent rating by similar rating agencies, and shall be from insurers authorized
to transact business in the State of Washington. In no event shall the limits of any
of the insurance policies be construed as limiting the liability of NWP.
A. Commercial general/excess liability insurance including coverage for
premises - operations, explosions and collapse hazard, underground hazard
and products completed hazard and sudden and accidental pollution, with
combined single limits not less than $100,000,000 (one hundred million
dollars) per occurrence and in tlie aggregate for bodily injury or death and
property damage.
B. Automobile liability for owned, non-owned and hired vehicles with a limit
of $2,000,000 (two million dollars) for each accident.
C. Worker's compensation within statutory limits and employer's liability
insurance with limits of not less than $2,000,000 (two million dollars).
If coverage is purchased on a"claims made" basis, then NWP shall warrant
continuation of coverage, either through policy renewals or the purchase of an
extended discovery period, if such extended coverage is available, for not less
than three years from the date termination of this Agreement, and/or conversion
from a"claims made" form to an "occurrence" coverage form. The required
liability limits may be met under a primary or an excess policy, or any
combination thereof.
18.2 Any deductibles or self-insured retentions must be declared to the City, if
requested by the City. Payment of deductibles and self-insured retentions shall be
the sole responsibility of NWP. 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 limits of
the insurer's liability.
18.3 NWP's insurance shall be primary insurance with respect to the City, its officers,
officials, employees, agents, consultants, and volunteers. Any insurance
maintained by the City, its officers, officials, employees, consultants, agents, and
volunteers shall be in excess of NWP's insurance and shall not contribute with it.
Public Way Agreement No. 08-27
January 5, 2009
Page 15 of 20
18.4 In addition to the coverage requirements set forth in this Section, the certificate of
insurance shall provide that:
"The policies providing the above described insurance will not be canceled before
the expiration date thereof, without the issuing company giving sixty (60) days
written notice to the certificate holder."
In the event of said cancellation or intent not to renew, NWP shall obtain and
furnish to the City evidence of replacement insurance policies meeting the
requirements of this Section 19 by the cancellation date.
Section 19. Compliance with Laws and Standards.
19.1 In carrying out any authorized activities under the privileges granted herein, NWP
shall meet accepted industry standards and comply with all applicable laws, rules,
and regulations, of any governmental entity with jurisdiction over the pipeline and
its operation (specifically including, but not limited to, all requirements, rules,
regulations, and orders of FERC). This shall include all applicable laws, rules and
regulations existing at the Effective Date of this Agreement or that may be
subsequently enacted by any governmental entity with jurisdiction over NWP
and/or the pipeline(s) and Facilities.
19.2 In the case of any conflict between the terms of this Agreement and the terms of
the City's ordinances, codes, regulations, standards and procedures, this
Agreement shall govern.
Section 20. Operations, Maintenance, Inspection, and Testing.
NWP shall be solely responsible for all costs, expenses, and liability for the
operation, maintenance, and testing of all pipeline(s) and all Facilities within the
Agreement Area, and NWP shall operate, maintain, inspect, and test the Facilities
in full compliance with all applicable federal, state, and local laws, rules,
regulations, and industry standards, as now enacted or hereinafter amended, and
any other future laws or regulations that are applicable to NWP, the Facilities, and
business operations.
Section 21. Force Majeure
In the event that either Party is prevented or delayed in the performance of any of
its obligations under this Agreement by reason beyond its reasonable control (a
"Force Majeure Event"), then that Party's performance shall be excused during
the Force Majeure Event. Force Majeure Events shall include, without limitation,
war; civil disturbance; flood, earthquake or other Act of God; laws, regulations,
rules or orders of any governmental agency; sabotage; strikes or similar labor
disputes involving personnel of a party, its contractors or a Third party; or any
failure or delay in the performance by the other party, or a Third Party who is not
Public Way Agreement No. 08-27
January 5, 2009
Page 16 of 20
an employee, agent or contractor of the Party claiming a Force Majeure Event, in
connection with this Agreement. Upon removal or termination of the Force
Majeure Event, the Party claiming a Force Majeure Event shall promptly perform
the affected obligations in an orderly and expedited manner under this Agreement.
The Parties shall use all commercially reasonable efforts to eliminate or minimize
any delay caused by a Force Majeure Event. The occurrence of a Force Majeure
Event shall not alter or impair any of the provisions concerning liability and/or
insurance as provided in this Agreement.
Section 22. Effective Date
This Agreement shall be effective on 92008.
Section 23. Miscellaneous.
23.1 In the event that a Court or agency of competent jurisdiction declares a material
provision of this Agreement to be invalid, illegal or unenforceable, the parties
shall negotiate in good faith and agree, to the maximum extent practicable in light
of such determination, to such amendments or modifications as are appropriate
actions so as to give effect to the intentions of the parties as reflected herein. If
severance from this Agreement of the particular provision(s) determined to be
invalid, illegal or unenforceable will fundamentally impair the value of this
Agreement, either party may apply to a Court of competent jurisdiction to reform
or reconstitute the Agreement so as to recapture the original intent of said
particular provision(s). All other provisions of the Agreement shall remain in
effect at all times during which negotiations or a judicial action remains pending.
23.2 Whenever this Agreement sets forth a time for any act to be performed, such time
shall be deemed to be of the essence, and any failure to perform within the
allotted time may be considered a material violation of this Agreement.
23.3 The Section headings in this Agreement are for convenience only, and do not
purport to and shall not be deemed to define, limit, or extend the scope or intent of
the Section to which they pertain.
23.4 This Agreement and all of the terms and provisions shall be binding upon and
inure to the benefit of the respective successors and assignees of the parties.
23.5 The parties each represent and warrant that they have full authority to enter into
and to perform this Agreement, that they are not in default or violation of any
permit, license, or similar requirement necessary to carry out the terms hereof,
and that no further approval, permit, license, certification, or action by a
governmental authority is required to execute and perform this Agreement, except
such as may be routinely required and obtained in the ordinary course of business.
Public Way Agreement No. 08-27
January 5, 2009
Page 17 of 20
23.6 Whenever this Agreement calls for notice to or notification by any party, the same
(unless otherwise specifically provided) shall be in writing and directed to the
recipient at the address set forth in this Section, unless written notice of change of
address is provided to the other party. If the date for making any payment or
performing any act is a legal holiday, payment may be made or the act performed
on the next succeeding business day which is not a legal holiday.
Notices shall be provided to the parties as follows:
To the City: Public Works Director
City of Auburn
25 West Main Street
Auburn, WA 98001-4998
Telephone: (253) 931-3010; Fax: (253) 931-3048
City Clerk
City of Auburn
25 West Main Street
Auburn, WA 98001-4998
To NWP: Northwest Pipeline G.P.
Attn: Land Department
22909 N.E. Redmond-Fall City Road
Redmond, WA 98053
Northwest Pipeline G.P.
Attn: Land Department
295 Chipeta Way
Salt Lake City, UT 84108
23.7 This Agreement and the attachments hereto represent the entire understanding and
agreement between the parties with respect to the subject matter and it supersedes
all prior oral negotiations between the parties. This Agreement can be amended,
supplemented, modified or changed only by an agreement in writing which makes
specific reference to the Agreement or the appropriate attachment and which is
signed by the party against whom enforcement of any such amendment,
supplement, modification or change is sought. All previous Agreements between
the parties pertaining to NWP's operation of its pipeline(s) and/or Facilities are
hereby superseded.
23.8 NWP shall, within thirty (30) days after the City's passage of this Agreement, file
with the City, its unconditional written acceptance of all the terms and conditions
of this Agreement. If NWP shall fail to so file and provide its written acceptance
within such period, then the rights and privileges granted hereunder shall be
deemed forfeited.
Public Way Agreement No. 08-27
January 5, 2009
Page 18 of 20
DATED this day of , 2009.
CITY OF AUBURN
PETER B. LEWIS
MAYOR
ATTEST:
Danielle E. Daskam,
City Clerk
APPROVED AS TO FORM:
D-alliel B.
City Attorney
K\2040104\00017\20125 BJF\20125A234Q
Public Way Agreement No. 08-27
January 5, 2009
Page 19 of 20
EXHIBIT "A"
. STATEMENT OF ACCEPTANCE
Northwest Pipeline Corporation, 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.
NORTHWEST PIPELINE CORPORATION
By: Date:
Name:
Title:
STATE OF )
)ss.
COUNTY OF )
On this day of , 2009, before me the undersigned, a Notary Public in and
for the State of , duly commissioned and sworn, personally appeared,
of Northwest Pipeline Corporation, the company that executed the within
and foregoing instrutnent, 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.
Signature
NOTARY PUBLIC in and for the State of
, residing at
MY COMMISSION EXPIRES:
Public Way Agreement No. 08-27
January 5, 2009
Page 20 of 20
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