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SETTLEMENT AGREEMENT
This SETTLEMENT AGREEMENT("Agreement")is made and entered into between
the CITY OF AUBURN("City"),a municipal corporation of the.State of Washington,and.
BNSF Railway, a Delaware corporation doing business in Washington State"BNSF." "file
parties shall be collectively referred to herein as the"Parties"and individually as a"Party",
unless specifically identified otherwise. This Agreement shall be effective upon the date that all
Parties have executed this Agreement(the"Effective Datc"),as evidenced by the signatures
below.
RECITALS
1. Tine City has completed construction of the A Street NW corridor from 3rd Street NW to 5"'
Street NW and from approximately 8`' Street NW to 14"' Street NW connecting to a previously
constructed portion of A Street NW.
2: Previous construction along the A Street NW Corridor associated with development of the
Gates,Gates, Gates LLC/AMPAC project included the construction of a public crossing across a
private rail spur("Crossing")which resulted in creating a public highway rail grade crossing...
The City issued a Right-of-Way Use Permit to Gates, Gates, Gates LLC for the Crossing.
3. During the resolution of Petition TR-120828 with the Washington Utilities and Transportation
Commission(UTC) it was determined that it was in the best interests of all Parties to complete
the work to design and install active protection 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 desigin, installation and long term
maintenance of the active protection measures. Nothing herein in intended to modify, supersede,
or amend the Industry Track Agreement and Lease of Laird previously entered into between
BNSF and Mohawk/AMPAC.
TERMS AND CONDITIONS
1. The City will coordinate the design and installation 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.Control Devices. BNSF shall not have the right
to comment on/approve the design of the Measures.
2.The City will be responsible for complying with all of the requirements of 49 C.F.R. Part
234—Grade Crossing Signal System Safety. In particular,but without limitation, tine City shall
be responsible for maintenance,inspection, and testing of the.Measures (Subpart D),responding
to reports of warning system malfiurction and record keep ing related thereto (Subpart C),and the
reporting requirements of accidents and.grade crossing signal system failrires(Subpart B). The
City agrees to indein'llify,defend, and hold BNSF harmless for any penalties assessed against
I3NSF for the City's failure to comply with Part 234 unless those penalties result from BNSF's
failure to cooperate with testing, or from its failure to report a inalf action or damage to the City.
City of Auburn/BSNF Agreement
Page 1 of 4
3. Measures will be installed within one year of the effective date of a UTC order authorizing
opening:of the crossing. If, prior to the end of tits one-year deadline, circumstances arise which
delay the completion of the installation,the City may file a motion to amend the UTC order. All
parties will have a right.to respond to this motion and a new deadline will not become effective
unless and until the UTC approves it.
4. The City will coordinate,at its own expense, all approvals for design review, permitting, and
installation of the Measures with BNSF, UTC,and any other regulatory agency, to the extent
necessary.
5. Not later than the effective date of the UTC order authorizing opening of the crossing,the
City shall, as an interim measure, install interim advance warning signs with flashing lights in
the vicinity of the Crossing and shall maintain such devices until the permanent Measures Have
been installed. The advance warning signs with flashing lights will be in compliance with
MUTCD standards. Tile City agrees to defend, indemnify, and hold harmless BNSF for all
claims related to the installation and operation of the Crossing until such time as the active
Measures are operational, except for those claims that result from BNSF's sole negligence or
gross misconduct.
6. Each Party agrees that this Agreement fully resolves all claims that could be made related to
the opening of the Crossing of Gates' private railroad spur. Except as provided for in this
Agreement, each Party agrees to release the other Parties' officers, directors, members,
shareholders, partners,employees, and attorneys from,and agrees not to invoke contractual
remedies, sue or initiate arbitration or other proceedings concerning, any and all claims,
contentions,debts, liabilities,demands, promises, agreements,costs,expenses(including but not
limited to attorneys' fees), damages,actions,or causes,of action, of whatever kind or nature,
whether now known or unknown, suspected or unsuspected,and whether based on contract, tort,
statutory or other legal or equitable theory of recovery that arise from or are based in any marmer
upon any act or omission arising from or in connection with the.opening of the Crossing.
6. The Parties agree that, with the interim measures in place 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 Transportation Commission to withdraw the petition without
prej Lidice and submit a new petition that includes the provisions of this Settlement Agreement.
,BNSF agrees to waive any appeal rights related to an order granting such motion. BNSF further
agrees that if the City files a new petition 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 UTC, in
which case any party may appeal as to those changed terms.
7. MISCELLANEOUS PROVISIONS.
a. Each Party represents and warrants that no other person or entity has,of has had,any interest
in the claims, deniands,-obligati ohs or causes of action rcfcrred to in and released pursuant to this
Agreement; that each Party.lias the sole right and exclusive authority to execute this Agreeiilent;
and that each Party has not sold,assigfied, transferred, conveyed or otherwise disposed of, by
City of Auburn/13SNF Agreement
Page 2 of 4
operation of law or otherwise,any ot'the claims, rights, demands, obligations or causes ofaction
referred to in this Agreement.
b. This Agreement is a valid and binding agreement,enforceable in accordance with its terms
against the Parties,and it shall be binding on and inure to the benefit of the Parties and their
respective legal representatives, successors and/or assigns. This Agreement has been negotiated
by the Parties and their respective counsel and shall be interpreted fairly in accordance with its
terms and without any strict construction in favor of or against either Party. No ambiguity or
omission in this Agreement shall be construed or resolved against any Party on the ground that
this Agreement or any of its provisions was drafted or proposed by that Party.
c. This Agreement is made solely and specifically among and for the benefit of the Parties
Hereto,and their•respective successors and assigns,and no other person will have any rights,
interest, or claim hereunder or be entitled to any benefits under or on account of this Agreeiuent,
whether as a third party beneficiary or otherwise.
d. The section headings used in this Agreement are intended for reference purposes only and
shall not affect the interpretation of the Agreement.
e. Except to the extent that 49 CRP Part 234 is applied or interpreted, this Agreement shall be
governed 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. Tile exclusive venue and
forum for any dispute regarding this Agreement shall be the state or federal court located in King
County, Washington. The prevailing party in any action arising from or relating to this
Agreement, including but not limited to any action to enforce this Agreement, shall be entitled
to reasonable attorneys' tees and costs.
f. This Agreement will be effective as of the Effective Date. This Agreement may be executed in
counterparts, including facsimile and cmail/PDF, each of which when so executed and delivered
shall be deemed an original,and such counterparts taken together shall constitute one instrument.
g. Iii entering.into this Agreement, neither Party has made any representations or warranties,and
neither Party has relied upon any representations or warranties, other than those representations
and warranties expressly stated in this Agreement.
h. If any provision of this Agreement or the application thereof is field invalid, tlue invalidity
shall not affect other provisions or applications of this Agreement that can be given elTect
without the invalid provision or:application and,to this end,the provisions of this Agreement are
declared to be severable.
i. This Agreement contains the sole and entire agreement between the Parties with respect to the
matters set forth herein,supersedes any and all prior or other agreements with respect to the
matters set forth herein (including but not limited to the Contract),and may not be changed,
amended,modified,terminated, waived or discharged except in a subsequent written agreement
City of AUburn/BSNF Agreement
Page 3 of 4
by tile Parties hereto. Each Party reiirescnts and acknowledges that it has read this Agreement,
has had opportunity to Consult with its legal counsel regarding this Agreement, is satisfied that
tile terms aildcondltioiis are tali',adequate and reasonable,Gild fully understands and agrees to
its terills.
j. The City's signature is subject to ratification and confirmation by the Auburn City Council.
IN WITNESS WHEREOF, the Parties enter into this Agreement. Each person sighing
this Agreement represents and warrants that he or she has been duly authorized to enter into this
Agreement by the Party on whose behalf it is indicated that the person is signing.
B F Railway ty o ub �-
lN: NOV 2 0 2012
Signature Date Signature Date
Richard W Wagner
Printed Name Peter B. Lewis, Mayor
Manager Public Projects Attest:
Title
Danielle Daskanl, City Cleric
Approv- to r
Dan'el r f-leid, Ci oi�ney
City of Auburn/BSNF Agreement
Page 4 of 4
J 'E' ME NT.
T. LEMENTA RE T
,Agreement'.)-is,madt'atid'crit6r�d into
This�SErrl,ElVli AGREEME�4"Q'
ENT"
!beiWeefi tI apunicipal co
rp tateo
�6::� ffy' '617'A OkN-.i-c ijyrj;;11 dfation,of the�
"-LLC * h— ' —timiWtMil— C-`
-W 121, ;ts
-;ngton'.
-?,qMp an"Y- V",
'-AMPAQ-4'� as ing
MItYp
i(�"Git��"),,andMOHAWK-�'NORTHtkA�';O'L-'X'§,TIft "L-Lt-''dba, 4t"'hi tj`
IMItd
�to-, erein
d'L
as the.�'Parties`and-indiVi uall�::�s,a"Party,,.,�untssspecificiillyidentified ot erWise. This;.:.
u
'Agreement shall,be effectiv.e,,'Upcip,the�.��at�'tfia't-'611.,,.Oartie� e d-tl w gr
s�have, xec _etment
ediv
as evid "the•
•
:RECITALS
5.0
-6,A;Street NW'coftidor from 3 Street NW to
-T cbmp eted'66h§truction of th rd
e City'has,
tiree't N W,aid;ftm.appro
ximate y W Street:NW46-14 Stredt:N, conn qtipg:to'-;h#;
h
6 re 'Ate AMPAC.
n'of-A.St e ;ougly'66ristru[&6d-b��G
aies/AMPA roadway`impr6vements alongAhe-A'Street NW
2. '0-
0-previous y con�tr'ucte'd
Corridor.associated 4'it'h',ihe"dev'elopmenf o their properties
con'.itruction of the
railroad spur crossing:
j.Th6 Cityjssued aROW g.
0'sd Petnift16,6iies fdr th6,Riilroad cros 4 in 6 the.public.right-'
, , f
of-way(Crossing):
'4".i)6ti'i'ig'th6,,-i-esolution,of,'P!etition:Tk,12628 withAhe Washington State Otiliti6s,And
." Trtinsp—oetiiiibn'Commissiofi..(L,jTC)it-w,as dekeiiiiihed that"'it'-w-a-s-'�i-n.-th'd":'I>est'itit''rests of all'
Paftiqs,-tq comp ek,, lude
�c the%�6rk.76 es,!gn'AhdJfista �active-.protection tridasdresItbInc
—flashiri Itkhts�atid,gat�s!At�ttf6,!!Crossingas'soon as
��ant.to docurneriteach-Parfie�'*;t�fe in the
par-601 design;,installation and'long term
maintenance'd
tlhe.act' p,ive rotectio'n measures'.
TERMS-,AN6,CONDITIONS
J, The Parties'W:*ill'work,t'6'"complete the d6s*gn and install ation-6f,the A
ctive,,Prdtection
- •
_Measures aiifieCrdssingt6;ihdIude,flashing I ,i
lights,gat
{"Measures")ffieeflngthe-reqqieme nts of Ilie
Ma ual' f Un if& Tiiffi b0 nt�8j 6evicdj.
ih-stilled"w'Rhin ond'.year6'i'i�e-dffeciiv-
e;date�of a,UTC order Auihori2ing
opening of the;crossiiig.lf,p —d"adil Ii ejor to-the,end o rr t 'e,,olne-year- eppi;
�. circumstance
sInse
which del h 'may d
ay,t ;�cdmpletion 6fthd:,insta lation,the City Al6im6tion't6ambn. the-UTC,
All 16 this m6ti6n.anda new-deadli'e '11'
4idet":All parties i
wi haye,,a right to re
n -wi 'not
cti' - I - . I . ."9;
bedb.mt6effd 'vd:un ess and until,.the,,UTC approves it;
-3,,,G46s and' d in Wi6n of the,active AMP&WillbeiinAlid-pr6cess ofde '6
-ro,ec i 'Meas'ures%im. e iat y4pon'the eM6 f
m el ii si� t�e WUTC zt t on v da
order
A' b rn/GAt6s/AMI?AC Settlement Agreement.
u u
Page
1 of 4'
4. The Ci will rovide. "uidance as`needed to`GateslAlvIPAC related to the desigmand
y tY. . P. . S
M t permitting processes"required''forahe Measures,
., ,
_ 5: Within legal constraints,_the City�shall.ma,,e available surplus.eguipm(nt.to:lie used to
assist;in completing,the installation ofthe'Measures.The C tyiwill also assist'in.locating'an
identifying:surplus equipment that"may belong to other government entities that:'
Gates%AMPAC could use.'. _
6.,The:City.will:waive:alf,City±fees for plari�and",permit review :inspections associated.
with the;approvAl'and installation of the-Measures,..Tfiese fees'include:butare.not,limited to,
Facility Extensiori Agreement Fees,(currentlyestimated at approximately$:11;500),
�'.:.
Gates/AIVIPAC„.willEbe:responsible.for electrical inspection:fees'chargedby Washington State
'b epartment of Labor�and Industries;and any design review fees charged.by BNSF.
” M 7.,Upon:completion;of installation.ofthe Measures;and'approya) by,the.UTC.ofthe ,
instahation Gates/AMPAC will convey,and the City,.will accept,the„Measures-for
,.ownership =After acceptance;the City.will be ful(yresponsible for all:maintenance and.repair
of the Measures. `
8.TI*City.will'coordinate,a't its own expense,all,approvals for design review,permitting,
and installation of.the Maasures-.With•BNSF, UTC;and'any other;regulatory,agency toA
'extent,necessary.
9. Not later than-th"e.effective date of the UTC-order authorizing opening-of the-crossing,.
'the,City shall,:as an,intentn.measure; install.interim'advance'waining`sigris With flashing.
li hts m the vicini o '
g , ty: f the:Crossing and,shall.maintain,such devices'u'iil,the permarierit
Measures,na"ve been:installed:.The advance waming signs with flashing lights will be in,
compliance with MUTCD standards..
10. Gates/AMPAC may.apply for an,applieation.for multi-year;Right=of Way permits for the
Crossing and for the:underground utility crossings;,in'accordance with,the:provisions;of
C he,Auburn'.CityCode.Gates%AMPAC understands°thatapproyal.of this
iiapter'.l 2:60.of t
Agreement does=notlir6it the'City.Council's 1egislative,.authority to'grant`or'deny multi-year ;
permits.Tlie;City agrees to.expeditiously process;tlie;application and.sufimit it to;the,City .
_:Council W,Rh a strong recommendation for approval. . f
11. Ea'ch`:1?arty agreesithat.this-Agreement fully,resolve"s aif"claims that could be.rnade related'
,to the opening of the;A'Street NW crossint,of Gates':private railroad,'spur.;Each:Party agrees:
•,'to release the other- arties'.officers,directors,members;.shareii-q'Id rs;partners em to ees; '
P.
and-attorneys'£rom;:anaz agrees:not.to'invoke.contractual remedies;sue or.utitiate:aibitration
or,'other proceedings'concerningj,any and:ali•claiins;contentions,debtsF;aiabilities;demands;.; l
promises,agreements,.costs,:expenses(including b'ui,not limited:to,attoriieys' fees);damages,.
actions,or-causes of action;of whateyer,kirid:or nature,whether.now known or:unknown;
suspected'or unsuspected,and whether;based on'contract,.tort;'statutory,or other legal,or
equitable theory of recovery.thai.arise from,or are based in any:,manner•upon any,act or
omission.arising froni-'or'iri connection with the open'ing.of the A StreefN W"raiicrossing:. t,
• , . . , . . . _ -
( + :Auburn/Gates/AMPAC,Settlemerit;Agreement ~.
Page 2•of4
l2
The Patties ag eeythat,","Mi interim.measur'e's in;place;thatithe"A Street:NV1!crossin :
g
l should;be`opened.Gates'and AMPAGagrde to`either,join�irra motiop," 'iore.the*ishin on
gt
£ Utilitie`s.and Transportation Commission'to withdraw the petition'without prejudiceand
submit`a newpetition.tiatinrludes hproisos otisSe n eme Gates"and
A11!1PAC'agree:to;waiveany;appealrights.related;t6an''order `"ntiii ','such"inotion:;Gates'and=:
AIvIPAC furthers ree that'if ttie Cityl`f les p 'stent.w�tl'this
.•: ,- , g . •. „ . anew etition than is cons 1
I 4 settlement agreement;vthat they will watrve their right to a hearing on the.new petition,unless
nged;by the UTC, in'.:wFiich case any partymay appeal,as.to thosec}ianged
the terms are cha
terms.:
' Y3:,MISCELLANEOUS PROVtSION3.,
i. ...
` a: Each Party:represents and,:warrants'that,no:other persomor endty'6s,,or has had,'.any
1 :interest,inf the,claims,demands,.obligations'or,causes of action refe`ired.to'`in an'd�released
pursuant-to t}iis Agreement ;thaf each`Paity has sole.right and exclusive authority to
execute:this,Agreement:and that each:Parcy has:nof sold,assigned,frarisferred,'conveyed,or
i otherwise�aisoosedof,by operation of laWor.dtherwis' 'an y.ofthe" laims rights,demands,
obligations,or,causesofacti on:referred.to.in.thisAgreement.
b.This Agreement,is'a.valid:"and,binding agreement;enforceable in:accordance with its terms
against.the,.Parfies,'andit shall,be.binding,on:and ii ure'to the'lienehi"dithe Parties:and.their
respegtive,tegal;representatives,,successors and%orassigns. This Agrepnient,h`as been
negotiated•.by the Parties,and-their respegtiyp dounsel.and.sfiall be'interp,i edfairly'in .,
aecordance;.witli;its_terms and;without'any,;striet construction in.favor".;of or against either
Party:.'No'ambiguity or omissiorrin this Agreement shall be construed'or'resolved against.
'
".:any-Party.,on the grounii that this Agreement_or any of.its pcovisioris�w"Araf�ted or proposed'
-:by that'Party:
c:This Agreement is made solely and specifically among'and for the beneft.of the'Parties
hereto,aod,their respective,successors'and,assigns,and.no:other person will have.any,rigtits,
interest;or'claim,hereurider'or be entitled:to any,bene.%undIer.or•on account of this
Agreement;,whether as:a'thir',diparty,beneficiary'orotherwise.
d.The section;headings used'in,this Agreement are intended for reference purposes only and
shall not effect the interpretation of the:Agreement:
e:This Agreement shall tie,governed by and:const'rued•in'accordanc,;with the,laws of the
State of:Washington,,.,w6but regard'to.Rine iples of con`hicts'of laws;as applicable•t0.
agreements made,andto.be,performed;entirely within Washington::,'.Tle exclu§ive'venue and
forum fora'ny,;dispute:regarding this Agreement sliail be.the state`orfederal court located-in
King County;„Washington;.The,prevailing party in any action arising from or re lating to,this f
:Agreement;including.bui not.limited to'a. action to enforce this'.Agreement;;shall be
entitledao'reasonafile attorneys'feesand costs:
T.This Agreement will,be effective as ofxhe Effective Date. This'Agreement maybe „ {
execute din.,counterparts;including facsimile and emaiUPDF;eacK'6f'which when so c
executed and delivered,shalhbe deeme&an'original,and such counterparts taken together.shall constitute constitute one instrument.
i
g: tn:entering into,this Agreement, neither_Party has:made any:representation's or-warranties, s
andne►ther.'.Party has relied.upon-any-representations or,warranties,;other"thin'those
:representations-and warranties expressly:stated in this,A' einent. �.
A6bui;n/Gates7AMPAC-,Settlement'Agreement
Page"3 of 4,-
.i
any:piovisibh of ibis A reement o'r-the'a 'lication thereof is el
^' ^` Kg, ,,.. PP h dmvalid;,the:,invalidity .
`.; ghalrn' :am other°provisions'or:applications'of;tfiis Agreement`thkcan be given effect
without,;tFie;invalid provision_or application and;to this,end,`the provisions of�this�Agreement
are declared:to°be severable:
eemenf:contains�the sole-and'en i
„_gr t re agreement-between.the;Partie's with respect;to ~'
ahe ma"ttOs`set,forth herein;supersedes'any.and all;prioror,other.agrgements:with`res respect
9 the.matters set'fo`rth herein and may:not:be<change'd;amended.modifed;-Terminated MA a +' or"dischar a
„g.,,d except'in'a subseijuent Weitten a'reement:b ;the:Paities`hereto: Each.Kart
g.:.. Y..,.,, Y..
'represents'and;acknowledges;that it his=read:this�Agreemen't,has liadt;opportunity to consult
with its legal coun"sal regarding this' , greement;;is'satisfied that the terms and eonditions are
fair,adequate and reasonable,and fully`understands.and agrees;to its-termS.
f.j:. The City's signature is subject toratification and,confirmation-,by.the Auburn'City Council
' Iiv IT
WNESS WHEREOF,the Parties-enter into this Agreement. Each.person
signing this'Agreemdnt.repre'sents and warrants that he or she has uthorized to
enter into.this Agreement by the party:oii'whose behalf it is.indicated that.the person is
signing:
Gates;Gates,Gates"LLC,. Mohawk Plastics;LLC City'of Auburn '.
d/b/a AMPAC ;
i O V 2 0.2012
ign,tu ate. Signature,: Date Signature Date
Printed'Name,Title' Printed_ .Namejitle.: Peter'B:Lewis, Mayor
C.Fj MA
Attest:
DaRi.Ibaskai*,City.Cleik
AA
e "form
tj d,.City
y
P
j' Auburn/Gates/AMPACSettlemeiit.Agreement i
s-
Page 4'of 4,
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