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
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ATTACHED TO CONTRACT BETWEEN
THE BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANY
AND
CITYOF � U ] UO \
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FORT WORTH. TEXAS V— — ^'
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PACIFIC ~—— DlV PARCEL — u'
SEATTLE -- SUB0{V L S .4_05.1
DATE 07/11/1997
I | ! PROPERTY owci ' a ��
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1 ES 435.65
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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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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
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(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