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HomeMy WebLinkAboutSettlement Agreement - Mohawk; Gates; Gates & Gates; BNSF I SETTLEMENT AGREEMENT This SETTLEMENT AGREEMENT("AgreemenP�is made and entered into between the CITY OF AUBURN("City"),a mumcipal corporation of the State of Washington,and BNSF Railway,a Delaware corporation doing business in Washington State"BNSF" 7'he pazties shall be collectively referred to herein as the"Parlies"and individually as a"Party", unless specifically identified otherwise. This Agreement shall be effective upon the date that all Paities have executed this Agreemem(the"Effective Date"),as evidenced by the signatures below RECITALS 1.The City has w�npleted construction of the A Street N W comdor from 3rd Sueet NW to 5�' Strcet NW and from approximately 8'h Street NW to 14'a Street NW connecting to a previously constnicted portion of A Street NW 2. Previous consuuction along the A Street NW Corridor associated with development of the Gates,dates,Gates LLGAMPAC projed included the constrvction of a public ccossing across a private rnil spur("Crossing'�which resulted in creating a public highway rail grade crossing. The City issued a Right-of-R7ay Use Permit to Gates,Gates,Gates LLC for the Crossing. 3.During the resolution of Petition TR-I20828 with the Washington Udlities and Transportation Commission(UTC)it was determined that it was in the best inurests of all Parties to complete the work w desi�and install active protecNon measures to include flashing lights and gates at the Crossing as soon as feasible. 4.The parties want to document each party's role in the design, installation and long term maintenance of the active protection measures. Nothing herein in intended to modify,supersede, or amend the Indushy Track Agreement and Leas6 of Land previously entered into betwcen BNSF and Mohawk/AMPAC. TERMS AND CONDITIONS l.'fhe City will coordinate the design end instnllation of the Active Protection Measures at the Crossing to include flashing lights,gates,and appurtenant equipment("Measures")meeting the requirements of the Manual of Uniform Traffic Contiol Devices. BNSF shall not have the right to commeht on/approve the design of the Mepsures. 2.77u City will be responsible for complying with all of the requiremenis of 49 C.F.R. Part 234—Grade Crossing Sig�al Systan Safety ln particutar,but without limitation,the City shall be responsible for maintenance,inspecrion,and testing of tlie Measures(Subpart D),responding � to reports of warning system malfunction and recorclkeeping related thereto(Subpart C),and the reporting requirements of accidems and grade crossing signal system failures(Subpazt B). The City agrees to indemnify,defend,and hold BNSF harmless for any penalties assessed against BNSF for the City's faiUue to comply with Part 234 unless those penalGes result from BNSF's failure to cooperate with testing,or from its failure to report a malfunction or damage W the City City of Aubum/BSNF Agreement Page 1 of 4 3.Measures will be installed within one year of t6e effective dete of a UTC order suthorizing apening of the crossing. [f,prior to the end of the one-year deadline,circumstances arise which delay the comptetion of the installation,the City may file a modon to amead the UTC order. Ap parties will have a right to respond to this motion and a new deadline will not become eff�tive unless and until the UTC approves it. 4. 'The City will coordinate,at its own expense,all approvals for design red►ew,peimitUttg,and installation of the Measures wit6 BNSF,UTC,and any other regulatory agency;to the extent necessary 5. Not later thatt the effective dau of the UTC o"rder authorizing opening of the orossing,the City shap,as an inteeim measure, install interun advance warning signs with flashing lights in tlu vicinity of the Crossing and shall maintain sdch devices�mtil the permanent Measui�es have been installed.The advance warning signs with flashirig lights wil!be in compGance with IvIIJTCD standards. The City a�nees to defend,indemaify,and hold tiarmless BNSF for all daims related to the installation and operation of the Crossing timtil such time as the active Measures are opeiational,except for those claims that msult from BNSF's sole negligence or gross miscondact. 6. Fach Party agrees that this Agreement fully resolves all claims that could 6e made related m the opening of the Crossing of Gates' private railroad spur. Except as provided for in this Agreanent,esch Party agrces to release the other Parties' officers,directors,members, sharehotders,partners,employces,and attomeys from,and agrees not to invoke conhactual remedies,sue or initiate arbitration or other proceedings concerning,any and all claims, contentions,debts,liabilities,demands,promises,asreements,costs,expenses(inctuding bui not limited to attomeys' fees),damages,actions,or causes of acaon,of whatever kind or nature, whether now known or unknown,suspected or unsuspected,and whether based on�nUact,tort, statutory or other legal or equitable d�eory of recovery thst arise from ar are based in any manner upon any act or omission arising from or in connection with the opening of the Crossing. 6.The Parties a�ee that,with the interim measures in pls�ce and after approval by the UTC of the revised and resubmitted petition,the Crossing can be opened BNSF agrees to join in a motion before the Washington Utilities and Teansportation Commission to withdraw the�tifion without prejudice and submit a uew petition that includes ihe pinvisions of this Settlement Agreement. BNSF agrees to waive any appeal rights related to an order granting such motion. BNSF further t�rces that if thc City files a new petirion that is consistent with this settlement agreement,that it will waive its right to a hearing on the new petition, unless the terms are changed by the iJTC,in which oase any party may appeal as to those changed ter�ns. 7 MISCELLANEOUS PROVISIONS. a. Each Party represents and warrants that no other person or entity has,or has had,any interest in the clairos,demands,obligations or causes of actioq refermd to m and released pursuant w this A�reement;that ench Party has the sole right and exclusive authority Lo execute this Agreement; and that each Ptuty has not sold,assigned,hansferred,conveyed or otherwise,disposed of,by City of Aubum/BSNF Agreement Page 2 of 4 operation of law or otherwise,any of the claims,rights,demands,obligations or causes of action referred to in tivs Agreement. b."I7iis Agreement is a valid and binding agreement,enforceable in accordance with its tertns against the Parties,and it shall be binding on and inure to the beneftt of the Parties and dieir respective legal cepresentatives,successors and/or assigns. This Agreement has beea negotiated by the Parties and their respective counsel and shall be interpreted fairly in accordance with its ternis and withoui any strict construction in favor of or apinst eithea Party No ambiguity or omission in this Agcement shail be construed or resolved against any Parfy on the ground that this Agreement or any of its provisions was drafted or proposed by that Party c.This Ag�eement is made solely and specifically among and for the benefit of the PaRies hereto,aad their respective successors and assigns,end no other person will have any rights, intere'st,or claim hereunder or be e�rtided to any beaefits under or on account of this Agreement, whether as a tttird party beneficiary or otherwise. d.The section headings used in this A�nent nrc intended for reference pur�ses only and shall not affect the interpretation of the Agreement. e.Except to the extent that 49 CRF Part 234 is applied or interpreted,this Agreement shall be govemed by and construed in accordance with the laws of the State of Washington,as applicable to agreements made and to be performed entirely within Washington.The exchisive venue and fonntt for any dispute agarding this Agrcement shnll be the stute or federal court located in King County,Washingmn. The prevailing party in any ac6on arising from or relating to this Agreement,iacluding but not limited to any action to enforce this A�rcement,shall be entitled to reasonable attomeys' fees and costs. f.T6is Agreemem will be effective as of the Effective Date. This Agreement may be acecuted in coun,terparts,including facsimile and emaiUPDF,each of which when so executed and delivered shall be deemed en original,and such counterparts taken together shall constitute one mstrmi►ent. g. In ecrtering into this Agreement,neither Party has made any representations or warian6es,and neither Party has relied upon any representatians or warranties,other ttian those representations and warrnnties expressly stated in this Agreement. h. lf any provision of this Agreement or the applicution thereof is held invalid,the mvalidiry shall not affect other provisions or applications of this Agreement thai can be given effect without the invalid provisioa or application and,to this end,the provisions of this Agreement are declared to be severable. i.This Agreement contains the sole nnd entire agreement between the Parties with respect to the matters set forth herein,supersedes any nnd all prior or other agreements with respect to the matters set forth herein(including biit nbt limited to the Contract),and may not be c6anged, amended,modified,terminated,waived or discharged except in a subsequent written agreemeat City of AuburnBSNF Agreement Page 3 of 4 by the Parties hereto. Each Party represents and acicnowledges that it has read this Agreement, has had opportunity to consult with its legal counsel regarding this Agreement,is satisfied that the terms and conditions are fair,adequate and reasonabte,arid fully.understands and agree.4 to its tatns. j.The City's signature is subject to ratification and confirmation by the Aubum City CounciL IN WTl'NF.SS WHEREOF,t6e Parties enter inW this Agreement Each peison signing this Agreement represents and wanants that he or she has been duly authori�d to enffir into this Agreement by the Party on whose behalf it is indicated that the person is signing. T F Railway 'ty o u ,� G� � 7o y NOV $ 02012 ignature Date Signature Date Richard W Wagner Printed Name Peter B. Lewis,Mayor Manager Public Projects Attest: C�� Title Daniolle� Daskam,City Clerk Approv to D 1 . Heid,C omey City of Aubw�n/BSNF Agreeme►rt Page 4 of 4 + - - - -•- � � � � I � SETTLEMENT AGREEMENT � �, This'SETTLEMENT ACfREEMENT("AgroetqenY')is madp end tnterod into i betwcen the CITY OF AUBUAN("Ciry"),a mpniei�l corporetion flf the State of � Was6ington,GATES,GATES,GATES,LLC,a Washington Limital Liabiliry Compeny � ("dates"),and MOHAWK NORTHERN PLASTICS,LLC.dba AMPAC;a Washingoon � Limited Liabil'rty CompanY("AMPAC).,' 7tie parties shall be collectively nefeired'to heroin as the"Parties"and individuslly as a"Party",unless specificatly identitied atherlvise: This A�eemerrc shall be effective upan the dato that all Parties have execufed'this Agreemerrc(the "Effoctive Date"j,as evidencad by tho signawros below. ! 4 RECITAL5 � I The City has compleud consuvction of the A Street N W corridor'fiom 3"�Street NW m 5'� � SVeet N W and from epproximauly g'"Smet NW to 14�'Street N1N connecting to that � �rtion of A St�eet NW previousiy construcced by Gates/AMPAC. i 2• Gates/AMPAC previously constructed roadway improvemenu along the A Street NW I Corridor associated with the developmem oftkieir properties mcluding the construction of the railroad sput crossing. 3.The Ciry issued a RO W Use Permit w(iates for the Railroad crossing of the pubtic right- of-way(Crossing). � 4• During die rosolution of Petition TR-12028 with the Washington State Util ities and Tiansportation Commission(UTC)it was detertnined thet h was in the best inurests of all ' Parties to wmplete the work to design and'mstall active protation me�.wros to include flashing lights end gates at tl�e Crossing as soon as feasible. 5•The parties waM to document each Perties' role in the design,installetion and long tertn maintenance oFthe active protection meesures. TERMS AND CONDITIONS 1 The Parties will work to complete the design and installation of the Active Protection Measm+es at the Crosaing to include flashing lights,gaus,and appwtenant equipmeM ("Measums'�mating the requirements of theManual of Uniform Traffic Coptrol Devices, 2•Measures will be installed within one year of thc effative date of a UTC order authorizing opening of the crossing. If,prior to the end of the one-year desdline,ctioumscances arise � whieh delsy the completion of the installation,the City may file a motion to emend the UTC order. All parties will have a right to respond to this motion end a new deadline will not become effective untess end uMil the UTC approves it. 3.Getes and AMPAC will begin the process of design and insmllation of the active protation Measures imm�diately upon the effective date of the WUTC order � Aubum/Gates/AMPAC SeWement AgreemeM Page 1 of 4 ; - � ' t ' t � � 4.Thc City will provide guidencx as rKKdod m Gates/AMPAC related to the�sign and � pamitting processes roquioed for the Measures. � � 5.Within legal conshaints,the City shali meke availeble surplus equipment to be used to � � assist in completing the installation ofthe Measuros.The Ciry will also'assist in locating and � iderrtifying surplus oquipment thst may belong to other governmrnt entities that i GetesfAMPAC could iue. i � 6.The City will waive all Ciry fees for plen and pem�it�sview,end inspecaons associaud � . with the approval and instailation of the Measures.These fees include,but are not limited to, Fecility Extension Agreemrnt Fees(cumently estimatod at approximately SI7,500). ( Gaoes/AMPAC will bo responsiWe for electrical inspection fas ehergpd by Washington Stste Department ofLabor and lndustries,and any design review fees charged by BNSF 7 Upon completion of installetion of the Meesures,end approva!by the UTC of the installetion,Gaus/AMPAC wiil wnvey,and the City will accapt,the Measurcs for ownership.After acceptance,the City wi(I be fully responsbie for all mairrtenance and repeir ofthe Measures. 8.The City will coordinate,at its own eupense,ell approvals for design ncview,pertnitting, and installation of the Measures with BNSF,UTC,and any other�egulatory agency to the ackM necessary. 9. Not lazer than the ePFective date of the U1'C order authorizing opening of the crossing, the Ciry shall,as an imerim measure,install irnerim advence warning signs with flashing �j lights in the vicinity ofthe Crossing and shall maintein such devices uMil the pennanent Meesures dave been instatled.The advence warning signs with flashing lights will be in compliance with MUTCD standards. 10.Gates/AMPAC may apply for sn epplication for muld-yeer Right-of-Way pennits for the Crossing and for the underground utility crossings, in accordance with the provisions of Chapter 12.60 of the Auburn City Code.Gates/AMPAC understends that approval ofthis Agament does not limit the City CounciPs legislative authority to grant or'deny multi-year permits.The Ciry agrces to expeditiously process the a�lication and submit it to the City Council with a strong recommendation for approval. I I Eech Party agrees that this Agreement fully resolves all cleima thst could be made rolaud to the opening of the A Street NW crossing of Gaus'private rnilroad.spur.Each Party agrees to rolcase the other Parfies' otficers,di�sctors,members,sharcholders,parmers,employees, and attomeys from,abd agrees not to invoke contracwel remodies,sue or initiate arbikation or other proccedings conceming,any and all ctaims,cornentions,debts,Iiabilities,demands, promises,agreemeMs,cos[s,expenses(including but�t limited to attorneys' fees),dameges, actiore,or causps of acfion,of wheuver kind or nawre,whether now known or unknown, saspeoted or unsuspocted,and whether based on contract,tort,statutory or other legal or equitable theory of recovery that arise from or arc based in any manner upon any act or omission arising from or in connection with the opening of the A StreEt NW cail crossing. � Auburn/GatcslAMPAC Sealement Ageemem Page 2 af 4 , - - - - -- - � ; � � i � 12.'Ihe Parties agrce tlfat,with irrterim measures in place,that the A SaatN W crossing � �J should be opened.Gntes and kMPAC agree to either join in a motion before the Washington Utilities and Transportation C,ommission to wahdrew the petition without pnejudia and i , sitbmii s new petition that includes Lhe provisions ofthts SeGiemeet Agreemont.Gatos ard � AMPAC agree to.waive anY appeal ri u related to en order Bh graMir�g such motion.Gates and AMPAC ti�rihar agree that if thc Ciry files a new pdition that is wnsistent wiih this � ' settlement agreement,that tfiey will waive their right to a hearing on the new petition,rmless i the terms are changed by the UTC.in which case any psrty may appeal as to those changed ' terms. , i � 13. MISCELLANEOU5 PROVISIONS. � ' a.Eech Pazty represents and wartsnts that no other person or eMity has,or has had,any ! inteno�in the clsims,demands,obligations orcauses of action roferrod m in and released I � pursuent W this Agreement;that eech Parry has tha sole right and exclusive authority W execuk this Agreemen�and that each Party hes not sold,assigned,uansfemed,wnveyed or otherwise disposed of,by operation of law or otherwise,any of the claims,rights,demands, obligations or causes of action referred to in this AgreemenL b.This Agre.emaM is a velid end binding agreemeat,enforceable in accordance with its terms against the Parties,and it shall be binding on and inure to the beneflt of the Parties and dieir rc.spective legal represe�tives,successors and/or assibms. This Agropment has been negotiated by the Parties end their respecdve counsel end shall be interpreted fsirly in accordance with its terms and without any strict conspvction in favor qf or against either Parry. No embiguity or omission in this Agreement shell be construed or resolved against any PaRy on the ground that this Agreament or any of its provisions was drafted or proposed � by thet Pany. c.This Ageement is made solely and specifically among and for the bancfit of the Parties hereto,and their respective successors and assigns,and no otlur person will hava any rights, Inkrest,or claim hereunder or be entkled to any benefits under or on axouM of this Agreement,whether es a third parry beneficiary or othorwise. d.The section headings used in this Agreement ere intended for referena puryoses only and sha!I not affect the inxrp�statian of the Agreement. e. 7'his Agreement shal l Ix governed by and construed in accordance with the laws of the StaYe of Washington,without rcgard to principles of conflicts of laws,es applicable to egreemmts made and to be performed entirely within Washington. The exclusive venue end forum for any dispute regarding this Agrtement shall be the stau or fada�sl court looated in King County,Washingron. 'fho prevailing pariy in any ection arising from or relating w this Agreemeny including but not limited to any.action to enforce this Agicement,shall be erthled W rcasonable auomeys'fas and wscs. f.This Agreement will be effective as of the Effective Dau. This Agreement may be oxecuted 'm wunterparts,including facsimile and emai(/PDf,each of which whon so executed and delivercd shall be deemed an original,and such countorpatts teken together shall consGtute one inshvment g. In eMering inW this Agrlement,rKither Party has made any represenmtions or waRanties, � end neither Party has relied upon any represenmtions or warranties,ofder than those representations and wazrenties e�cpressly staud in this AgreemeM. CAuburo/Gstes/AMPAC SettlemeM Agreemem Page 3 of 4 � h. lEen rovisionoftliis Y P AgrcemerR orthe application thereof is held invalid,the invalidity � � shall not affect other provisions or applicatioea of this Agroemem tliat can be given effeet widaut the invalid provision or application and,to this end,tl�e provisions of this Ag�eement Iaro cbcland to be severable. i.This Agroement co�ire the sole and rntire agreement between qu Parties with rcspect to ' the matues set tbrth herein,supersedes airy and all prior or other agaments with nspect to the matters set forih heroin,and may not be chenged,amended,modified,oemiinated,waived or discharged except in s subsequent wribDen egreeme�u by the Parties hereto. Eech Party ' represents and ackaowledges that it has read this Agrxmrnt,has had opportunity m consult , � with its[egal counsel regarding thls Agreement,is setisfied tl�et the terms end conditions ais i � fair,adequau and reasonable,and fully undecstands and agrees m its urtns. i j. The City's signawre is subject to ratification and contirmetion by dx Aubum City Council ( ' M N'1T1�1ESS Wf�REOF,the Parties enur into this Agieement Each pecson signing this Agreement represeras snd warrerrts tFwt he or she has beep duly audioriud to enter ir�this Agrcement by the Party on whose behalf it is indicated d�at dx person is sigmng. Gatos,Gates,Gahs LLC Mo6awk Plastics,LLC City of Aubnrn d/b/a AMPAC r�/""�'Z ��-9-�L �' Ov 2 0 2ot2 ,,,,.� Sign wre ate 5ignature Deu Si�awre Dete � _.mPm(� �fy,�R� �sy.�,l Printed Name, itle Printed Name,TiUe Peter B.Lewis,Mayor Cf•✓f2ic. Ih/r^��(i1.0 Attest: Dan Daskam,City Cierk A e fortn i . eid,Ciry Attomey � Aubum/Gates/AMPAC Settlemerrt Agreanem Page 4 of 4