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HomeMy WebLinkAbout2868 1 RESOLUTION NO 2 8 6 8 2 3 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF AUBURN, WASHINGTON, AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE A 4 PIPE LINE LICENSE AGREEMENT BETWEEN THE BURLINGTON NORTHERN 5 AND SANTA FE RAILWAY COMPANY (BNSF) AND THE CITY OF AUBURN FOR THE CITY TO CONSTRUCT AND MAINTAIN A TWELVE-INCH WATER 6 PIPELINE CROSSING THE BNSF RAILROAD YARD SOUTH OF 15TH STREET SW BETWEEN "A" AND "C" STREETS 7 8 THE CITY COUNCIL OF THE CITY OF AUBURN, WASHINGTON, IN A 9 REGULAR MEETING DULY ASSEMBLED, HEREWITH RESOLVES AS FOLLOWS 10 11 Section 1 The Mayor and City Clerk of the City of 12 Auburn are herewith authorized to execute a Pipe Line License 13 Agreement between the City and the Burlington Northern and 14 Santa Fe Railway Company (BNSF) for the City to construct and 15 maintain a 12-inch water pipeline crossing the BNSF railroad 16 17 yard south of 15th Street SW between "A" and "C" Streets A 18 copy of said Agreement is attached hereto, denominated as 19 Exhibit "A" and made a part hereof as though set forth in full 20 herein 21 ,Section 2. The Mayor is hereby authorized to implement 22 23 such administrative procedures as may be necessary to carry 24 out the directives of this legislation 25 26 Resolution No 2868 July 30, 1997 Page 1 1 DATED this 18th day of August, 1997 2 3 4 CITY OF AUBURN 5 7 CHARLES A BOOTH MAYOR 8 9 10 ATTEST 11 12 13 Robin Wohlhueter, 14 City Clerk 15 16 17 APPROVED AS TO FORM 18 19 /aj20 ,, Michael J Reynolds, 21 City Attorney 22 23 24 25 26 Resolution No 2868 July 30 1997 Page 2 alp W CATELLUS SEP - 8 1997 September 3 1997 BF 2504 crave �OF OFFICE AGO LFRKS OFF Ms. Robin Wolilhueter, City Clerk City of Auburn 25 West Main Auburn, WA. 98001 Dear Ms. Wohlhueter Enclosed please find executed Pipeline License for 12-inch water crossing BNSF Ry Co.'s property at Auburn, WA., for the City's file. A copy of the executed Agreement must he available upon request at the job site allowing authorization to do the work. Please contact Roadmaster, Ron Kazen at Tacoma, WA., telephone (206) 591 2563, five (5) days in advance of entry and BEFORE YOU DIG, CALL 1-800-533- 2891. If you need additional information please contact me at (972) 719-6156. Sincerely Sson Contract Specialist Enclosure cc: Mr Ron Kazen, Roadmaster BNSF Railway Company 605 Puyallup Avenue Tacoma, WA. 98421 dr-Al 11741 A 412 CATELLUS MANAGEMENT CORPORATION 4545 FULLER DRIVE, SUITE 105 IRVINU,TEXAS 75038 (972) 719-0111 FAX (972) 719-6153 Form Approved by VP-Law Contract No.BF- 224 PIPE LINE LICENSE THIS LICENSE, made this 14th day of July, 1997, subject to the terms and conditions set forth herein, between THE BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANY, its successors and assigns, a Delaware corporation (hereinafter called "Licensor"), party of the first part, and CITY OF AUBURN, WASHINGTON, a municipal corporation (hereinafter, whether one or more, called "Licensee"), party of the second part. WITNESSETH, That the parties hereto for the consideration hereinafter expressed covenant and agree as follows: 1 Subject to the terms and conditions hereinafter set forth, Licensor grants a nonexclusive license to Licensee for it and/or its contractors to construct and maintain ONE (1) WATER PIPELINE, 12-INCHES IN DIAMETER (hereinafter, whether one or more pipe lines, called the "PIPE LINE"), across or along the rail corridor of Licensor at or near the station of Auburn, King County, Washington, Line Segment 51, Mile Post 22.29, the location of the PIPE LINE being more particularly shown on the attached EXHIBIT "A", Drawing No. 1-11316, dated July 11, 1997, and made a part hereof. 2. This agreement shall be effective ,'/9US/29 , 1997 3. Licensee shall use the PIPE LINE solely for carrying POTABLE WATER and shall not use it to carry any other commodity or for any other purpose whatsoever 4 Licensee shall pay Licensor as compensation for this license the sum of TWO THOUSAND FIVE HUNDRED AND NO/100 DOLLARS ($2,500.00). 5. Licensee shall, at its own cost and subject to the supervision and control of Licensor's field engineer, locate and/or relocate, construct and maintain the PIPE LINE in such a manner and of such material that it will not at any time be a source of danger to or interference with the present or future tracks, roadbed or rail corridor of Licensor, or the safe operation of its railroad. When the PIPE LINE is used for oil, gas, petroleum products, or other flammable or highly volatile substances under pressure, the PIPE LINE shall be constructed, installed and thereafter maintained in conformity with the plans and specifications shown on print hereto attached, marked Exhibit B and made a part thereof If at any time Licensee shall, in the judgment of Licensor, fail to perform properly its obligations under this paragraph, Licensor may, at its option, arrange for the performance of such work as it deems necessary for the safe operation of its railroad, and in such event Licensee agrees to pay, within fifteen (15) days after bill shall have been rendered therefor, the cost so incurred by Licensor, but failure on the part of Licensor to perform the obligations of Licensee shall not release Licensee from liability hereunder for loss or damage occasioned thereby 1 of 7 ORIGINAL 6 Licensee shall reimburse Licensor for any expense incurred by Licensor for false work to support Licensor's tracks and for flagman to protect its traffic during installation and maintenance periods and for any and all other expense incurred by Licensor on account of the PIPE LINE. (The current rate, subject to change without notice, for furnishing of Licensor's Flagman is a minimum daily charge of $300.00, for the first eight hours, or any part thereof, per day, with an hourly charge of $45.00 per hour for any time over eight hours per day) 7 Prior to any boring work on or about any portion of the Premises, Licensee shall explore the proposed location for such work with hand tools to a depth of at least three (3) feet below the surface of the ground to determine whether pipeline(s) or other structures exist below the surface, provided, however, that in lieu of the foregoing, the Licensee shall have the right to use suitable detection equipment or other generally accepted industry practice (e.g., consulting with the Underground Services Association) to determine the existence or location of pipeline(s) and other subsurface structures prior to drilling or excavating with mechanized equipment. 8. Prior to installation, five (5) days advance notice must be given to Licensor's Roadmaster, Ron Kazen at Tacoma, WA., telephone (206) 591- 2563. 9 (a) Except as set forth in Section 9 (b), Licensee shall release, indemnify, and hold harmless Licensor for all losses, damages, expenses, injuries or death to Licensee, its employees, agents and contractors, arising in any manner from the performance of this agreement, except for Licensor's gross negligence or intentional misconduct. Licensee further agrees to release, indemnify, and hold harmless Licensor for all losses, damages, expenses, injuries, or death to any person, including Licensor, which arise in any manner from the construction, maintenance, use, state of repair or presence of Licensee's pipeline(s) (b) Whenever any employee, agent or contractor of Licensee or any of Licensee's Parties makes any claim for personal injury or death against Licensor within the meaning of the Federal Employers' Liability Act, or any applicable safety act, (45 U.S.0 e51 et. seq.), for any incident caused, wholly or in part, by property, equipment, fixtures or condition belonging to or subject to the control of Licensee, or claims or alleges that he or she is an employee of Licensor or is furthering the operational activities of Licensor, Licensee agrees to indemnify and hold harmless Licensor for all losses, damages, costs or expenses related to such claim, regardless of Licensor's negligence (c) The liability assumed by Licensee shall not be affected by the fact, if it is a fact, that the loss, damage, death or injury was occasioned by or contributed to by the negligence of Licensor, its agents, servants employees, or otherwise, to the fullest extent permitted by applicable law; provided, however, that Licensee shall have no obligation to assume such liability to the extent caused by the negligence of Licensor or its employees or agents where assumption of such liability would violate Washington, Oregon, Idaho or the Province of British Columbia Laws. 2 of 7 10 If at any time during the term hereof Licensor shall desire to make any use of its rail corridor with which the pipeline will in any way interfere, including the relocation of existing or the construction of new pipeline(s) and other facilities in which it shall have an interest, Licensee shall, at Licensee's own cost, within thirty (30) days after receiving written notice from Licensor to such effect, make such changes in the pipeline as in the judgment of Licensor may be necessary to avoid interference with the proposed use of its rail corridor 11 (a) Licensee shall, at its expense, procure and maintain throughout the term of this License a comprehensive general form of insurance covering liability, including, but not limited to, Public Liability, Personal Injury and Property Damage, as well as Contractual Liability in the amount of $1,000,000 per occurrence and $2,000,000 in the aggregate Such insurance shall contain no exclusion with respect to rail corridor of Licensor in the care, custody or control of Licensee. Licensee's contractors shall also procure and maintain the above coverage when on Licensor's property LICENSOR AND CATELLUS MANAGEMENT CORPORATION SHALL BE NAMED AN ADDITIONAL INSURED. (b) All risk insurance on the PIPE LINE of the Licensee, or Licensor's property in Licensee's care, custody and control, shall contain a waiver of subrogation of claims against Licensor Licensee shall maintain Workers Compensation insurance which shall contain a waiver of subrogation against Licensor (c) All insurance shall be placed with insurance companies licensed to do business in the State in which the PIPE LINE is located, with a current Best's Insurance Guide Rating of B and Class X, or better Licensee shall provide Licensor in advance of said installation a Certificate of Insurance evidencing such insurance. Insurance must provide for coverage of incidents occurring within fifty (50) feet of a railroad track, and any provision in the insurance policy to the contrary must be specifically deleted. (d) A Railroad Protective Liability insurance policy issued in the name of Licensor with limits of $2,000,000 for bodily injury and property damage per occurrence with an aggregate of $6,000,000 must be provided when construction work will be performed within fifty (50) feet of Licensor's tracks. The policy will remain in force during the construction phase of this project and must be provided prior to Licensor signing this license. (e) In lieu of providing a Railroad Protective Liability Insurance policy, Licensee may participate in Licensor's Blanket Railroad Protective Liability Insurance Policy available to Licensee or its contractor The limits of coverage are the same as above The cost is $3,000.00. I elect to participate in Licensor's Blanket Policy; ❑ I elect not to participate in Licensor's Blanket Policy (f) The furnishing of insurance required by this Section shall in no way limit or diminish the liability or responsibility of Licensee as provided under any Section of this License. 3of7 (;- (g) Licensee shall be allowed to self-insure any or all of the insurance coverages referenced above. 12. Upon written notice from Licensor, Licensee agrees to assume the defense of any lawsuit, or other proceeding brought against Licensor by any public body, individual, partnership, corporation, or other legal entity, relating to any matter covered by this License for which Licensee has an obligation to assume liability for and/or save and hold harmless Licensor Licensee shall pay all the costs incident to such defense including, but not limited to, attorneys' fees, investigators' fees, litigation expenses, settlement payments, and amounts paid in satisfaction of judgments. 13. (a) Licensee shall comply with all federal, state and local environmental laws and regulations in its use of Licensor's rail corridor, including, but not limited to, the Resource Conservation and Recovery Act, as amended (RCRA), and the Comprehensive Environmental Response, Compensation, and Liability Act, as amended (CERCLA) Licensee shall not maintain a treatment, storage, transfer or disposal facility, or underground storage tank, as defined by RCRA, on or under Licensor's rail corridor Licensee shall not release or suffer the release of oil or hazardous substances, as defined by CERCLA, on Licensor's rail corridor Notwithstanding any other requirements in this contract, Licensee assumes all responsibility for the investigation and cleanup of such release and shall indemnify and defend Licensor and its agents for all costs and claims, including consultant and attorney fees, arising in any manner out of such release or Licensee's failure to comply with environmental laws, regardless of whether such costs or claims are caused or contributed to by the negligence or alleged negligence of Licensor, except to the extent such costs or claims are proximately caused by Licensor's gross negligence or intentional misconduct. (b) Licensee shall give Licensor timely notice of any release, violation of environmental laws or inspection or inquiry by governmental authorities charged with enforcing environmental laws with respect to Licensor's rail corridor Licensee also shall give Licensor timely notice of all measures undertaken by or on behalf of Licensee to investigate, remediate, respond to or otherwise cure such release or violation. (c) In the event that Licensor receives notice from Licensee or otherwise of a release or violation of environmental laws which occurred or is occurring during the term of this License, Licensor may require Licensee, at Licensee's sole expense, to take timely measures to investigate, remediate, respond to or otherwise cure such release or violation. 14 If default shall be made in any of the covenants or agreements of Licensee contained in this document, or in case of any assignment or transfer of this License by operation of law, Licensor may, at its option, terminate this License by serving five (5) days' notice in writing upon Licensee; but any waiver by Licensor of any default or defaults shall not constitute a waiver of the right to terminate this License for any subsequent default or defaults, nor shall any such waiver in any way affect Licensor's ability to enforce any Section of this License. The remedy set forth in this Section shall be in addition to, and not in limitation of, any other remedies that Licensor may have at law or in equity 4 of 7 Qs / � r 15. Licensee shall promptly pay and discharge any and all liens arising out of any construction, alterations or repairs done, suffered or permitted to be done by Licensee on the PIPE LINE and shall indemnify Licensor against any loss, liability or expense incurred by Licensor on account of such liens. Licensor is hereby authorized to post any notices or take any other action upon or with respect to the PIPE LINE that is or may be permitted by law to prevent the attachment of any such liens to Licensor's premises; provided, however that failure of Licensor to take any such action shall not relieve Licensee of any obligation or liability under this Section or any other Section of this License. 16. In the case of eviction of Licensee by anyone owning or obtaining title to the rail corridor on which the PIPE LINE is located, or the abandonment by Licensor of said rail corridor, Licensor shall not be liable to Licensee for any damage of any nature whatsoever or to refund any payment made by Licensee to Licensor hereunder, except the proportionate part of any recurring rental charge which may have been paid hereunder in advance. 17 Any notice to be given by either party shall be deemed to be properly served if deposited with the United States Postal Service, or other acceptable mailing service, postage prepaid, addressed to either party, at the addresses and department shown beneath signature of the parties. 18 In the event that Licensee consists of two or more parties, all the covenants and agreements of Licensee herein contained shall be the joint and several covenants and agreements of such parties. 19 Any contractor or subcontractor performing work on or in connection with the PIPE LINE shall for the purpose of this license, be conclusively deemed to be the servant and agent of Licensee acting on behalf and within the scope of such contractor's or subcontractor's employment for Licensee. 20 Neither Licensee, nor the heirs, legal representatives, successors or assigns of Licensee, nor any subsequent assignee, shall underlease or sublet the PIPE LINE nor assign or transfer this License or any interest herein, without the prior written consent and approval of Licensor 21 It is understood and agreed that this License shall not be placed of public record. 22. All the covenants and provisions of this License shall be binding upon the heirs, legal representatives, successors and assigns of Licensee. No assignment by Licensee shall be binding upon Licensor without the written consent of Licensor in each instance. 23. All questions concerning the interpretation or application of provisions of this License shall be decided according to the laws of the State in which the PIPE LINE is located. 5 o f 7 a7Y, 6 24 To the maximum extent possible, each provision of this License shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this License shall be prohibited by, or held to be invalid under, applicable law, such provision shall be ineffective solely to the extent of such prohibition or invalidity, and this shall not invalidate the remainder of such provision or any other provision of this License. 25. The waiver by Licensor of the breach of any provision herein by Licensee shall in no way impair the right of Licensor to enforce that provision for any subsequent breach thereof 26. Notwithstanding any other provisions of this license, Licensee shall comply with all statutes, ordinances, rules, regulations, orders and decisions issued by any federal, state or local governmental body or agency established thereby relating to Licensee's use of Licensor's premises hereunder 27 This license is given by Licensor and accepted by Licensee upon the express condition that the same may be terminated at any time by either party upon thirty (30) days' notice in writing to be served upon the other party, stating therein the date that such termination shall take place, and that upon the termination of this license in this or any other manner herein provided, Licensee, upon demand of Licensor, shall abandon the use of the PIPE LINE and remove the same and restore the rail corridor of Licensor, as near as possible, to the same condition in which it was prior to the placing of the PIPE LINE thereunder In case Licensee shall fail to restore Licensor's rail corridor within Thirty (30) days after the effective date of termination, Licensor may proceed with such work at the expense of Licensee. No termination hereof shall release Licensee from any liability or obligation hereunder, whether of indemnity or otherwise, resulting from any acts, omissions or events happening prior to the date the PIPE LINE is removed and the rail corridor of Licensor restored as above provided. 28. This License is the full and complete agreement between Licensor and Licensee with respect to all matters relating to license on the Premises, and supersedes any and all other agreements between the parties hereto relating to license on the Premises. 6 of 7 Catellus Management Corporation is acting as agent for The Burlington Northern And Santa Fe Railway Company WHEREOF, the parties have executed this agreement in duplicate the day and year first above written. THE BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANY By Catellus Management Corporation Its Attorney in Fact 4545 Fuller Drive, Suite 105 ing, TX 75038 By , Ja s A. Ball, Manager Cont acts CITY OF AUBURN, WASHINGTON 25 West Main Street Auburn, WA. 98001-3010 (D By C.14a1ites Title: Charles A. Booth, Mayor _ RWJ-124 ATTEST 1/1-/A/D Robin Wohihueter City Clerk APPROVED AS TO FORM I I I / Michael J. Reynolds City Attorney 7 of 7 f ,;-r ����U� � �� � �� "A" RWJ-124 ���� � � � U �� ATTACHED TO CONTRACT BETWEEN THE BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANY AND CITYOF � U ] UO \ �/ | | | \J | /�U � UK \ m n N- - m FORT WORTH. TEXAS V— — ^' SCALE 1 IN =](]� FT WWp — w PACIFIC ~—— DlV PARCEL — u' SEATTLE -- SUB0{V L S .4_05.1 DATE 07/11/1997 I | ! PROPERTY owci ' a �� i � �I 1� '1"414,,,E6 I et e 1 ES 435.65 ■ TO SEATTLE. t. 1; : k, ; re; 9ii i ..,,r,4...._ I Pi t 41 i..t.s6-0N„ A TO TACOMA DESCRIPTION OF PIPELINE | PIPELINE SHOWN BOLD ]iia■•— z--2 .--- / CARRIER CAS[NC CARRIER [AS ING PIPE PlP[ P[PE P{PE S}7[ l2 « ?4 /' LENGTH ON R/W T28/ 728 / CONTENTS WATER WORKING PRESSURE 75 PS [ / /, P{P[ MATERIAL D I STEEL BURY BASE/RAIL TO TOP OF CASING 5 6 M{N SPECIFICATION / GRADE CL 52 GR B BURY NATURAL GROUND 3 ' MlN WALL THICKNESS 0, 37 " 8^ 375 x BURY ROADWAY DITCHES 3' M IN COATING N/A COAL—TAR CATHODIC PROTECTION YES VENTS NUMBER N/A S|ZE — HEIGHT OF VENT ABOVE GROUND — NOTE CAS lNS TO BE JACKED OR DRY BORED ONLY AT AUBURN COUNTY OFK7NC STATE OF WA f6 I JCH DRAWING NO. 1 - 11316 r INTER-DEPARTMENT MEMO DATE. August 7, 1997 TO: City Clerk FROM Caroline Bergt, P W SUBJECT Res. 2868 I have attached a copy of the letter from Catellus, the permitting agent for BNSF RR that gives instructions for returning both copies of the License A check for $6,000 has been requested and I will forward it to your office Please enclose with the signed permits the Evidence of Coverage from WCIA and the check, and cc: me the letter of transmittal. Catellus will date and execute the agreement, and return one fully executed Permit. Please make a copy of the permit when it is returned along with any correspondence accompanying the permit and forward it to my attention for our project files. 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'ZZ isn6ny AJaIJ asuaortsp ooaa 'pylon a■wey )paiD/CID dlndoQ •we)jsea !uea 'pap RID'Jalanyiyom u!gou HOAVIN'RLOOH V S3 ISVI IJ 1 RESOLUTION NO 2 8 6 8 2 3 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF AUBURN, WASHINGTON, AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE A 4 PIPE LINE LICENSE AGREEMENT BETWEEN THE BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANY (BNSF) AND THE CITY OF AUBURN FOR 5 THE CITY TO CONSTRUCT AND MAINTAIN A TWELVE-INCH WATER 6 PIPELINE CROSSING THE BNSF RAILROAD YARD SOUTH OF 15TH STREET SW BETWEEN "A" AND "C" STREETS 7 8 THE CITY COUNCIL OF THE CITY OF AUBURN, WASHINGTON, IN A 9 REGULAR MEETING DULY ASSEMBLED, HEREWITH RESOLVES AS FOLLOWS 10 Section 1. The Mayor and City Clerk of the City of 11 12 Auburn are herewith authorized to execute a Pipe Line License 13 Agreement between the City and the Burlington Northern and 14 Santa Fe Railway Company (BNSF) for the City to construct and 15 maintain a 12-inch water pipeline crossing the BNSF railroad 16 17 yard south of 15th Street SW between "A" and "C" Streets A 18 copy of said Agreement is attached hereto, denominated as 19 Exhibit "A" and made a part hereof as though set forth in full 20 herein 21 Zection 2 . The Mayor is hereby authorized to implement 22 23 such administrative procedures as may be necessary to carry 24 out the directives of this legislation 25 26 Resolution No 2868 July 30, 1997 Page 1 1 DATED this 18th day of August, 1997 2 3 4 CITY OF AUBURN 5 7 CHARLES A BOOTH MAYOR 8 9 10 ATTEST 11 13 k ILeted Robin Wohlhueter, 14 City Clerk 15 16 17 APPROVED AS TO FORM 18 19 20 Michael J Reynolds, 21 City Attorney 22 23 24 25 26 Resolution No 2868 July 30, 1997 Page 2 w c Washington Cities Insurance. L. Authority 33-Iu1-97 Cerrn• I?A' Burlington Northern Santa Fe Railroad Cumpam, ATT\ Catellus Management Corporation 4545 Fuller Dnve, Suite 105 Irving,TX 75038 RE. City of Auburn CITY ACTIVITIES AS RESPECTS, LICENSE FOR 12-INCH WATER PIPELINE. EN (deuce of Co:'e."nge The above captioned entity is a member of the Washington Cities Insurance Authorit\, (WCIA), which is a self insured pool of over 86 municipal corporations in the State of Washington WCI.A has at least $1 million per occurrence combined single limit of Liability coverage in its self insured laver that may be applicable in the event an incident ocean that is deend to be attributed to the negligence of the member WCIA is an Interlocal Agreement among municipalities and liability is completely self funded bi the membership As there is no insurance policy involved and Vi CIA is not an insurance company, your organization cannot be named as an "additional insured' Sincerely,' �i// r. c B Larsr-i Assistant D'rectcr c:. D._ne ..k.7. e Car's. .._ Sera dater PO 6or i 55 R"..c: ..;9 ':s7 CITY OF AUBURN • STATE OF WASHINGTON • 98001 99 rr,� (1 INVOICE NUMBER DATE P.O. NUMBER - DESCRIPTION - IOIQUNT 5 PR599 8/20/97 975872 PR599 LISC FOR 12INCH WATER LINE $5,750 00 CROSSING - PLEASE DETACH BEFORE DEPOSITING U.S. BANK CLAIMS CHECK PN 125905 1910 C3Wor Auburn Branch 1250 CITY OF AUBURN 401 15th WA VOID CHECK DATE 311 � ' � Auburn.WA 98002 AFTER CHECK DATE 25 WEST MAIN STREET �g_G�OO NUMBER DATE NUMBER AMOUNT •h NUMBER STATE OF WASHINGTON 98001 308220 8/20/97 12590E $5,750 00 PAY FIVE THOUSAND SEVEN HUNDRED FIFTY DOLLARS AND NO CENTS TO THE BURLINGTON NORTHERN & SANTE FE RAILWAY CO Q_,K,:e`Lea. �,am P 0 BOX 73043 ORDER CHICAGO, IL 60673-7043 ' D, ^^ OF A-�d(-i1" r L AUTHORIZED SIGN URE 01259051I' 41. 25000105Q: 3LL7 03854L0 Form Approved by VP-Law Contract No. PIPE LINE LICENSE THIS LICENSE, made this 14th day of July, 1997, subject to the terms and conditions set forth herein, between THE BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANY, its successors and assigns, a Delaware corporation (hereinafter called "Licensor"), party of the first part, and CITY OF AUBURN, WASHINGTON, a municipal corporation (hereinafter, whether one or more, called "Licensee"), party of the second part. WITNESSETH, That the parties hereto for the consideration hereinafter expressed covenant and agree as follows: 1 Subject to the terms and conditions hereinafter set forth, Licensor grants a nonexclusive license to Licensee for it and/or its contractors to construct and maintain ONE (1) WATER PIPELINE, 12-INCHES IN DIAMETER (hereinafter, whether one or more pipe lines, called the "PIPE LINE"), across or along the rail corridor of Licensor at or near the station of Auburn, King County, Washington, Line Segment 51, Mile Post 22.29, the location of the PIPE LINE being more particularly shown on the attached EXHIBIT "A", Drawing No. 1-11316, dated July 11, 1997, and made a part hereof. 2. This agreement shall be effective , 1997 3. Licensee shall use the PIPE LINE solely for carrying POTABLE WATER and shall not use it to carry any other commodity or for any other purpose whatsoever 4 Licensee shall pay Licensor as compensation for this license the sum of TWO THOUSAND FIVE HUNDRED AND NO/100 DOLLARS ($2,500 00). 5. Licensee shall, at its own cost and subject to the supervision and control of Licensor's field engineer, locate and/or relocate, construct and maintain the PIPE LINE in such a manner and of such material that it will not at any time be a source of danger to or interference with the present or future tracks, roadbed or rail corridor of Licensor, or the safe operation of its railroad. When the PIPE LINE is used for oil, pas, petroleum products, or other flammable or highly volatile substances under pressure, the PIPE LINE shall be constructed, installed and thereafter maintained in conformity with the plans and specifications shown on print hereto attached, marked Exhibit B and made a part thereof If at any time Licensee shall, in the judgment of Licensor, fail to perform properly its obligations under this paragraph, Licensor may, at its option, arrange for the performance of such work as it deems necessary for the safe operation of its railroad, and in such event Licensee agrees to pay, within fifteen (15) days after bill shall have been rendered therefor, the cost so incurred by Licensor, but failure on the part of Licensor to perform the obligations of Licensee shall not release Licensee from liability hereunder for loss or damage occasioned thereby ORIGINAL 1 of 7 6. Licensee shall reimburse Licensor for any expense incurred by Licensor for false work to support Licensor's tracks and for flagman to protect its traffic during installation and maintenance periods and for any and all other expense incurred by Licensor on account of the PIPE LINE. (The current rate, subject to change without notice, for furnishing of Licensor's Flagman is a minimum daily charge of $300.00, for the first eight hours, or any part thereof, per day, with an hourly charge of $45.00 per hour for any time over eight hours per day) 7 Prior to any boring work on or about any portion of the Premises, Licensee shall explore the proposed location for such work with hand tools to a depth of at least three (3) feet below the surface of the ground to determine whether pipeline(s) or other structures exist below the surface, provided, however, that in lieu of the foregoing, the Licensee shall have the right to use suitable detection equipment or other generally accepted industry practice (e.q., consulting with the Underground Services Association) to determine the existence or location of pipeline(s) and other subsurface structures prior to drilling or excavating with mechanized equipment. 8. Prior to installation, five (5) days advance notice must be given to Licensor's Roadmaster, Ron Kazen at Tacoma, WA., telephone (206) 591- 2563. 9 (a) Except as set forth in Section 9 (b), Licensee shall release, indemnify, and hold harmless Licensor for all losses, damages, expenses, injuries or death to Licensee, its employees, agents and contractors, arising in any manner from the performance of this agreement, except for Licensor's gross negligence or intentional misconduct. Licensee further agrees to release, indemnify, and hold harmless Licensor for all losses, damages, expenses, injuries, or death to any person, including Licensor, which arise in any manner from the construction, maintenance, use, state of repair or presence of Licensee's pipeline(s). (b) Whenever any employee, agent or contractor of Licensee or any of Licensee's Parties makes any claim for personal injury or death against Licensor within the meaning of the Federal Employers' Liability Act, or any applicable safety act, (45 U.S.0 e51 et. seq.), for any incident caused, wholly or in part, by property, equipment, fixtures or condition belonging to or subject to the control of Licensee, or claims or alleges that he or she is an employee of Licensor or is furthering the operational activities of Licensor, Licensee agrees to indemnify and hold harmless Licensor for all losses, damages, costs or expenses related to such claim, regardless of Licensor's negligence. (c) The liability assumed by Licensee shall not be affected by the fact, if it is a fact, that the loss, damage, death or injury was occasioned by or contributed to by the negligence of Licensor, its agents, servants employees, or otherwise, to the fullest extent permitted by applicable law; provided, however, that Licensee shall have no obligation to assume such liability to the extent caused by the negligence of Licensor or its employees or agents where assumption of such liability would violate Washington, Oregon, Idaho or the Province of British Columbia Laws. 2 of ietaJ:9—ff& K 10. If at any time during the term hereof Licensor shall desire to make any use of its rail corridor with which the pipeline will in any way interfere, including the relocation of existing or the construction of new pipeline(s) and other facilities in which it shall have an interest, Licensee shall, at Licensee's own cost, within thirty (30) days after receiving written notice from Licensor to such effect, make such changes in the pipeline as in the judgment of Licensor may be necessary to avoid interference with the proposed use of its rail corridor 11 (a) Licensee shall, at its expense, procure and maintain throughout the term of this License a comprehensive general form of insurance covering liability, including, but not limited to, Public Liability, Personal Injury and Property Damage, as well as Contractual Liability in the amount of $1,000,000 per occurrence and $2,000,000 in the aggregate. Such insurance shall contain no exclusion with respect to rail corridor of Licensor in the care, custody or control of Licensee. Licensee's contractors shall also procure and maintain the above coverage when on Licensor's property LICENSOR AND CATELLUS MANAGEMENT CORPORATION SHALL BE NAMED AN ADDITIONAL INSURED. (b) All risk insurance on the PIPE LINE of the Licensee, or Licensor's property in Licensee's care, custody and control, shall contain a waiver of subrogation of claims against Licensor Licensee shall maintain Workers Compensation insurance which shall contain a waiver of subrogation against Licensor (c) All insurance shall be placed with insurance companies licensed to do business in the State in which the PIPE LINE is located, with a current Best's Insurance Guide Rating of B and Class X, or better Licensee shall provide Licensor in advance of said installation a Certificate of Insurance evidencing such insurance Insurance must provide for coverage of incidents occurring within fifty (50) feet of a railroad track, and any provision in the insurance policy to the contrary must be specifically deleted. (d) A Railroad Protective Liability insurance policy issued in the name of Licensor with limits of $2,000,000 for bodily injury and property damage per occurrence with an aggregate of $6,000,000 must be provided when construction work will be performed within fifty (50) feet of Licensor's tracks. The policy will remain in force during the construction phase of this protect and must be provided prior to Licensor signing this license. (e) In lieu of providing a Railroad Protective Liability Insurance policy, Licensee may participate in Licensor's Blanket Railroad Protective Liability Insurance Policy available to Licensee or its contractor The limits of coverage are the same as above. The cost is $3,000.00. ® I elect to participate in Licensor's Blanket Policy; ❑ I elect not to participate in Licensor's Blanket Policy (f) The furnishing of insurance required by this Section shall in no way limit or diminish the liability or responsibility of Licensee as provided under any Section of this License. ���� of 7 (g) Licensee shall be allowed to self-insure any or all of the insurance coverages referenced above. 12. Upon written notice from Licensor, Licensee agrees to assume the defense of any lawsuit, or other proceeding brought against Licensor by any public body, individual, partnership, corporation, or other legal entity, relating to any matter covered by this License for which Licensee has an obligation to assume liability for and/or save and hold harmless Licensor Licensee shall pay all the costs incident to such defense including, but not limited to, attorneys' fees, investigators' fees, litigation expenses, settlement payments, and amounts paid in satisfaction of judgments. 13. (a) Licensee shall comply with all federal, state and local environmental laws and regulations in its use of Licensor's rail corridor, including, but not limited to, the Resource Conservation and Recovery Act, as amended (RCRA), and the Comprehensive Environmental Response, Compensation, and Liability Act, as amended (CERCLA) Licensee shall not maintain a treatment, storage, transfer or disposal facility, or underground storage tank, as defined by RCRA, on or under Licensor's rail corridor Licensee shall not release or suffer the release of oil or hazardous substances, as defined by CERCLA, on Licensor's rail corridor Notwithstanding any other requirements in this contract, Licensee assumes all responsibility for the investigation and cleanup of such release and shall indemnify and defend Licensor and its agents for all costs and claims, including consultant and attorney fees, arising in any manner out of such release or Licensee's failure to comply with environmental laws, regardless of whether such costs or claims are caused or contributed to by the negligence or alleged negligence of Licensor, except to the extent such costs or claims are proximately caused by Licensor's gross negligence or intentional misconduct. (b) Licensee shall give Licensor timely notice of any release, violation of environmental laws or inspection or inquiry by governmental authorities charged with enforcing environmental laws with respect to Licensor's rail corridor Licensee also shall give Licensor timely notice of all measures undertaken by or on behalf of Licensee to investigate, remediate, respond to or otherwise cure such release or violation. (c) In the event that Licensor receives notice from Licensee or otherwise of a release or violation of environmental laws which occurred or is occurring during the term of this License, Licensor may require Licensee, at Licensee's sole expense, to take timely measures to investigate, remediate, respond to or otherwise cure such release or violation. 14 If default shall be made in any of the covenants or agreements of Licensee contained in this document, or in case of any assignment or transfer of this License by operation of law, Licensor may, at its option, terminate this License by serving five (5) days' notice in writing upon Licensee; but any waiver by Licensor of any default or defaults shall not constitute a waiver of the right to terminate this License for any subsequent default or defaults, nor shall any such waiver in any way affect Licensor's ability to enforce any Section of this License. The remedy set forth in this Section shall be in addition to, and not in limitation of, any other remedies that Licensor may have at law or in equity 4 of 7 ie ' `7 r 15. Licensee shall promptly pay and discharge any and all liens arising out of any construction, alterations or repairs done, suffered or permitted to be done by Licensee on the PIPE LINE and shall indemnify Licensor against any loss, liability or expense incurred by Licensor on account of such liens. Licensor is hereby authorized to post any notices or take any other action upon or with respect to the PIPE LINE that is or may be permitted by law to prevent the attachment of any such liens to Licensor's premises; provided, however, that failure of Licensor to take any such action shall not relieve Licensee of any obligation or liability under this Section or any other Section of this License. 16. In the case of eviction of Licensee by anyone owning or obtaining title to the rail corridor on which the PIPE LINE is located, or the abandonment by Licensor of said rail corridor, Licensor shall not be liable to Licensee for any damage of any nature whatsoever or to refund any payment made by Licensee to Licensor hereunder, except the proportionate part of any recurring rental charge which may have been paid hereunder in advance. 17 Any notice to be given by either party shall be deemed to be properly served if deposited with the United States Postal Service, or other acceptable mailing service, postage prepaid, addressed to either party, at the addresses and department shown beneath signature of the parties. 18. In the event that Licensee consists of two or more parties, all the covenants and agreements of Licensee herein contained shall be the joint and several covenants and agreements of such parties. 19 Any contractor or subcontractor performing work on or in connection with the PIPE LINE shall for the purpose of this license, be conclusively deemed to be the servant and agent of Licensee acting on behalf and within the scope of such contractor's or subcontractor's employment for Licensee. 20. Neither Licensee, nor the heirs, legal representatives, successors or assigns of Licensee, nor any subsequent assignee, shall underlease or sublet the PIPE LINE nor assign or transfer this License or any interest herein, without the prior written consent and approval of Licensor 21 It is understood and agreed that this License shall not be placed of public record. 22. All the covenants and provisions of this License shall be binding upon the heirs, legal representatives, successors and assigns of Licensee. No assignment by Licensee shall be binding upon Licensor without the written consent of Licensor in each instance. 23. All questions concerning the interpretation or application of provisions of this License shall be decided according to the laws of the State in which the PIPE LINE is located. 5 of 7 02-r& 24 To the maximum extent possible, each provision of this License shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this License shall be prohibited by, or held to be invalid under, applicable law, such provision shall be ineffective solely to the extent of such prohibition or invalidity, and this shall not invalidate the remainder of such provision or any other provision of this License. 25. The waiver by Licensor of the breach of any provision herein by Licensee shall in no way impair the right of Licensor to enforce that provision for any subsequent breach thereof 26. Notwithstanding any other provisions of this license, Licensee shall comply with all statutes, ordinances, rules, regulations, orders and decisions issued by any federal, state or local governmental body or agency established thereby relating to Licensee's use of Licensor's premises hereunder 27 This license is given by Licensor and accepted by Licensee upon the express condition that the same may be terminated at any time by either party upon thirty (30) days' notice in writing to be served upon the other party, stating therein the date that such termination shall take place, and that upon the termination of this license in this or any other manner herein provided, Licensee, upon demand of Licensor, shall abandon the use of the PIPE LINE and remove the same and restore the rail corridor of Licensor, as near as possible, to the same condition in which it was prior to the placing of the PIPE LINE thereunder In case Licensee shall fail to restore Licensor's rail corridor within Thirty (30) days after the effective date of termination, Licensor may proceed with such work at the expense of Licensee. No termination hereof shall release Licensee from any liability or obligation hereunder, whether of indemnity or otherwise, resulting from any acts, omissions or events happening prior to the date the PIPE LINE is removed and the rail corridor of Licensor restored as above provided. 28. This License is the full and complete agreement between Licensor and Licensee with respect to all matters relating to license on the Premises, and supersedes any and all other agreements between the parties hereto relating to license on the Premises. 6of7 (9--K6t Catellus Management Corporation is acting as agent for The Burlington Northern And Santa Fe Railway Company WHEREOF, the parties have executed this agreement in duplicate the day and year first above written. THE BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANY By Catellus Management Corporation Its Attorney in Fact 4545 Fuller Drive, Suite 105 Irving, TX 75038 By James A. Ball, Manager Contracts CITY OF AUBURN, WASHINGTON 25 West Main Street Auburn, WA. 98001-3010 {� _� By' Clw k I&& Title. Charles A Booth Mavor RWJ-124 ATTEST Robin Wohlhueter City Clerk APPROVED AS TO FORM: Michael J Reynolds City Attorney 7of7ar6,r 9cLLs 3321 dVw 9l£ 1. 1. -L '0N ONIMV80 VIA JO 31d1S AiN0 03800 A80 80 03X3Vr 30 01 ONISVO 310N - 00089 3A09V 1N3A JO 1H913H SBA N01133108d 3100H1V3 NIN ,£ S3H31I0 AVMOV08 A8n9 NUN ,£ ONnOdO 1V8n1VN A8119 NIIN „9 ,S ONISV3 30 d01 01 11V8/3SV9 A809 ISd SL 38I1SS38d ON I)18OM :an ,9ZL M/8 NO HION31 3dld 3dId ONISV3 83188V3 lI I l-1 �r II M , 3NIl AlU3d021d � Y minx Oil ON D1 d0 1.1Nf103 NHfl9flV iv - 311S V/N 8391N0N S1N3A 8V1-1V03 V/N „SL£ '0 „ L£ '0 9 80 ZS 13 1331S d10 8 1VM „ b3 „ Zl 3dId 3dld ONISV3 83I88V3 0109 NMOHS 3NI13dld 3N113dld JO NOIld180S30 ': I • ry ly�k. 1 4"' . . _. i /' ONIIVOO SS3NXOIHI 11VM 30V83 / N0IIV313103dS 1V1831VIN 3dld S1N31N0O 3115 z —1S - Ss•Sft S3 • e00- _ f Y3N11 A1tl3d3 d 1338Vd dVIN -A Ir 1900 s 1 moons AIO 31313Vd '13 002= NI l :31V3S SVX31 'H180M 1803 Nn9nd d0 J\ 1. ID {{1 L661/1 L/L0 31V0 3111V3S ONV ANVd11400 AVM1IVEI 3A b1NVS ONd Md3H1UON NOIONI32Uf19 3Hl N33M139 131181NO3 01 03H3V11V lISIHX3 (MY or CHAR!FS A.BOOTH,MAYOR 4114il1 AUBURN CITY CLERK Robin Wohlhueter,City Clerk Auburn 25 Wcst Main Auburn,WA 98001 Dam Daskam, Deputy City Clerk Cily Clcrki(253)931-3039 Tamie Bothell,Records/License Clerk Business Registration:(253)931-3007 Fax.(253)288-3132 %ine STATE OF WASHINGTON) ) ss. COUNTY OF KING I, Robin Wohlhueter, the duly appointed, qualified City Clerk of the City of Auburn, a Municipal Corporation and Code City, situate in the County of King, State of Washington, do hereby certify that the foregoing is a full, true and correct copy of Resolution No. 2868 of the resolutions of the City of Auburn, entitled 'RESOLUTION NO 2868." I certify that said Resolution No 2868 was duly passed by the Council and approved by the Mayor of the said City of Auburn on the 18th day of August, 1997 Witness my hand and the seal of the City of Auburn this 15th day of September, 1997 Robin Wohlhueter City Clerk City of Auburn