HomeMy WebLinkAbout6674 ORDINAIVCE NO. 6 6 7 4
AN ORDINANCE OF THE CITY COUNCIL OF THE
CITY OF AUBURN, WASHINGTON, GRANTING A
FRANCHISE AGREEMENT FOR A PETROLEUM
PRODUCTS PIPELINE TO OLYMPIC PIPE LINE
COMPANY, LLC
WHEREAS, Olympic Pipe Line Company, LLC ("Grantee") has applied to
the City of Auburn ("City") for a non-exclusive Franchise for the right of entry, use,
and occupation of certain public right(s)-of-way within the City, expressly to install,
construct, erect, operate, maintain, repair, relocate and remove its facilities in, on,
over, under, along and/or across those right(s)-of-way; and
WHEREAS, following proper notice, the City Council held a public hearing
on Grantee's request for a Franchise, at which time representatives of Grantee
and interested citizens were heard in a full public proceeding affording opportunity
for comment by any and all persons desiring to be heard; and
WHEREAS, from information presented at such public hearing, and from
facts and circumstances developed or discovered through independent study and
investigation, the City Council now deems it appropriate and in the best interest of
the City and its inhabitants that the franchise be granted to Grantee.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF AUBURN
WASHINGTON, DO ORDAIN as follows: �
Section 1. Grant of Right to 4Jse Franchise Area I�
A. Subject to the terms and conditions stated herein, the City granfs to ,
the Grantee general permission to enter, use; and occupy the right(s)-of-way
and/or other public property specified in Exhibit "A", attached hereto and ;
incorporated by reference (the "Franchise Area").
B. The Grantee is authorized to install, remove, construct, erect,
operate, maintain, relocate and repair, for provision of those services set forth in
Exhibit `"B" ("Grantee Services") pipeline or pipelines, and associated valves,
fittings, location markers and signs, communieation systems, utility lines, signage,
protective apparatus, and all other appurtenances, equipment, and faeilities,
Ordinance No. 6674
Franchise No. 17-22
February 20, 2018
Page 1 of 27 �
whether above or below grade, useful or incidental to or for the operation or
protection thereof (the " Grantee Facilities"), and conduct such other activities as
may be convenient in connection therewifh as determined by Grantee, for the
transportation of oil, gases, liquids, solids, or any mi�ctures thereof, and any
product, by-product, and derivatives thereof, on, over, under, across, and through
the Franchise Area.
C. This Franchise does not authorize the use of the Franchise Area for
any facilities or services other than Grantee Facilities and Grantee Services, and
it extends no rights or privilege relative to any facilities or services of any type,
including Grantee Facilities and Grantee Services, on public or private property
elsewhere within the City. This Franchise is intended to convey only a limited right
and interest and is not a warranty of title or interest in the City's right-of ways. The
Agreement does not convey any right to Grantee to install Grantee Facilities on or
to otherwise impact, eity-owned or leased properties, easements, or rights-of way
outside the ones identified in Exhibit A.
D. This Franchise is non=exclusive and does not prohibit the City from
entering into other agreements, including Franchises, impacting the Franchise ,
Area, unless the Cify determines that entering into such agreements interferes with
Grantee's right set forth herein.
E. Except as explicitly set forth herein, this Franchise does not waive
any rights that the City has or may hereafter acquire with respect to the Franchise
Area or any other City roads, rights-of-way, property, or any porkions thereof. This
Franchise shall be subject to the power of eminent domain, and in any proceeding
under eminent domain, the Grantee acknowledges its use of the Franchise Area
sh.all have no value.
F. The City reserves the right to change, regrade, relocate, abandon, or
vacate any right-of-way within the Franchise Area. If, at any time during the term
of this Franchise, the City vacates any portion of the Franchise Area containing
Grantee Facilities, the City shall reserve an easement for public utilities within that
vacated portion, pursuant to RCW 35.79.030, within which the Grantee may
continue to operate any existing Grantee Facilities under the terms of this
Franchise for the remaining period set forth under Section 3.
G. The Grantee agrees that its use of Franchise Area shall at all times
be subordinated to and subject to the Gity and the public's need for municipal
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Ordinanee No_ 6674
Franchise No. 17-22
February 20, 2018
Page 2 of 27
A
infrastructure, travel, and access to the Franchise Area, except as may be
otherwise required by law.
H. This Franchise is subject to the provisions of Auburn City Code
(``ACC''), including specifically ACC Ghapter 20.10, "CONDITIONS OF PUBLIC
WAY AGREEMENTS, FRANCHISES, AND FACILITIES LEASES", and all
applicable federal and state laws, codes and regulations as currently exist or as
amended. However, if the provisions of city code, as amended or superseded,
conflict with any terms and conditions of this agreement, the provisions of this
agreement shall govern.
Section 2. IVotice
A. Whenever this Franchise calls for notice to or notification by any
party, the same (unless othen►vise specifically provided) shall be in writing and
directed by certified mail to the recipient at the address set forth in this Section.
If the date for making any payment, notice; or performing any act is a legal holiday,
payment or notice may be made or the act performed on the next succeeding
business day which is not a legal holiday.
Gity: Engineering Aide,
Gommunity Development and Public Works Department
Gity of Auburn
25 West Main Street
Auburn, WA 98001-4998
Telephone: (253) 931=3010; Fax: (253) 931-3048
wifh a copy to: Cify Clerk
City of Auburn
25 West Main Street
Auburn, WA 98001-4998
Grantee: Olympic Pipe Line Company, LLC.
Right of Way Agent
2319 Lind Ave SW
Renton, WA, 98057
Telephone: (425) 235-7736, Fax (425) 981-2525
Ordinance No. 6674
Franchise No. 17-22.
February 20, 2018
Page 3 of 27
')
B. Any changes to the above-stated Grantee information shall be sent
to the City's Engineering Aide, Community Development and Public Works
Department, with copies to the City Clerk, referencing the title of this agreement.
C. The above-stated Grantee voice and fax telephone numbers shall be
staffed at least during normal business hours, Pacific time zone.
Section 3. Term of Agreement
A. This Franchise shall run for a period of 10 (ten) years, from the date
of execution specified in Section 5.
B. Renewal Option of Term: The Grantee may renew this Franchise for
an additional ten (10) year period upon submission and approval of the application
specified under ACC 20.06.130, as it now exists or is amended, within the
timeframe set forth therein (currently befinreen 180 and 240 days prior to expiration
of the then-current term). Any materials submitted by the Grantee for a previous
application may be considered by the City in reviewing a current application, and
the Grantee shall submit those materials that differ from the previous materials or
as deemed necessary by the City to address changes in the Grantee Facilifies or
Grantee Services, or to reflect specific reporting periods mandated by the AGC.
C. - Failure to Renew Franchise—Automatic Extension. If the Parties fail
to formally renew this Franchise prior to the expiration of its term or any extension
thereof, the Franchise automatically continues year to year until renewed or either
party gives written notice at least one hundred and eighty (180) days in advance
of intent not to renew the Franchise.
Section 4. Definitions
For the purpose of this agreement:
"ACC' means the Auburn City Oode.
"Emergency" means a condition of imminent danger to the health, safety and
welfare of persons or property located within the City including, without limitation,
damage to persons or property from natural consequences, such as storms,
earthquakes, riots, acts of terrorism or wars.
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Ordinance No. 6674
Franchise No. 17-22
February 20, 2018
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"Maintenance" or ``Maintain'' shall mean examining, testing, inspecting, repairing,
maintaining and replacing the existing Grantee Faeilities or any part thereof as
required and necessary for safe operation.
"Relocation" means permanent movement of Grantee facilities required by the
City, and not temporary or incidental moyement of such facilities, or other revisions
Grantee would accomplish and charge to third parties without regard to municipal
request.
"Rights-of-Way'' or "Right-of-Way" means the surface and the space above and
below streets, roadways, highways, avenues, courts, lanes, alleys, sidewalks,
easements, rights-of-ways and similar public properties and areas.
"Grantee Facilities" or "Facilities" means, collectively, any and all systems owned
or operated by Grantee located in the City Rights-of-Way, including but not limited
to pipelines, mains, laterals, fixtures, communication systems, and any and all
other equipment appliances, attachments, appurtenances and other items
necessary, eonvenient, or in any way appertaining to any and all of the foregoing
for the purpose of transmission of petroleum products, whether the same be
located over or under ground.
"Hazardous Substance" shall specifically include, but shall not be limited to,
petroleum and petroleum products and their by-products, residue, and remainder
in whatever form or state.
"Operate" or "Operations" shall mean the operation, use, and maintenance of
Grantee Facilities, pursuant to the terms of this Agreement.
"Party" or"Parties'' means collectively the Gity and Grantee, and individually either
the City or Grantee.
"Public Works Project" means, any City capital improvement or the construction,
relocation, expansion, repair, maintenance, or removal of any part of the Right-of-
Way or City-owned facilities located on or in the Right-of-Way for: parks; streets;
sidewalks; curbs; pedestrian and/or vehicle traffic; sewers, storm water drains;
water facilities, and; City-owned fiber optic eable, conduit or nefinrork facilities.
"Third Party'' means any person, party, or entity oiher than the City and Grantee.
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Franchise No. 17-22
February 20, 2018
Page 5 of 27
"FERC'' means the Federal Energy Regulatory Commission, or such other
successor regulatory agency having jurisdiction over interstate pipeline
companies.
Section 5. Acceptance of Franchise
A. This Franchise, and any rights granted hereunder, shall not become
effective for any purpose unless and until Granteefiles with the City Clerk (1) the
Statement of Acceptance, attached hereto as Exhibit "C," and incorporated by
reference, (2) all verifications of insurance coverage specified under Section 17,
(3) the financial guarantees specified in Section 18 and (4) payment of any
outstanding application fees per the City fee schedule. These four items shall
collectively be the "Franchise Aceeptance". The date that such Franchise
Acceptance is filed with the City Clerk shall be the effective date of this Franchise.
B. Should the Grantee fail to file the Franchise Acceptance with the City
Clerk within thirty (30) days after the effective date of the ordinance approving the
Franchise Agreement, the City's grant ofithe Franchise will be null and void.
Section 6. Cons4ruction and flAaintenance
A, The Grantee shall apply for, obtain, and comply with the terms of all
permits required under ACC Chapter 12.24 for any work done upon Grantee
Facilities. Grantee shall comply with all applicable City, State, and Federal codes,
rules, regulations, and orders, as they now exist or as may be hereafter amended
or superseded, in undertaking such work, which shall be done in a thorough and
profcient manner.
B. Grantee agrees to coordinate its activities with the City and all other
utilities located within the Right-of=Way within which Grantee is under taking its
activity. Such efforts shall include, at a minimum, reasonable and diligent efforts to
keep fhe other party and other utilities within the Right-of-Way informed of its intent
to undertake such construc#ion work.
C. In addition to complying with ACC 20.10.80, as hereafter amended
or superseded, Grantee Facilities shall be located and maintained within the Right=
of=Way so as not to interFere with the reasonable ingress or egress to the properties
abutting the Right-of-Ways as they existed or exist at the time of installation of the
Grantee Facilities. The City expressly reserves the right to prescribe how and
where Grantee Facilifies shall be installed within the public right-of-way and may
Ordinance No. 6674
Franchise No. 17-22
February 20, 2018
Page 6 of 27
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from time to time, pursuant to the applicable sections of this Franchise, require, at
no cost to the Cify, the removal, relocation and/or replacement thereof in the public
interest and safety at the expense of the Grantee. I
D. Grantee shall cohtinuously be a member of the State of Washington I
One Number Loc.ator service under RCW Chapter 19.122, or an approved
equivalent as determined by the City, and shall comply with all such applicable
rules and regulations. Before commencing any work within the Right-of-Way, the
Grantee shall comply with the One Number Locator provisions of RCW Chapter
19.122 to identify existing utility infrastructure.
E. Tree Trimming. Upon prior written approval of the City and in
accordance with City ordinances, Grantee shall have the authority to reasonably
trim t�ees upon and overhanging streets, Right-of-Way, and such other places in
the Franchise Area so as to prevent the branches of such trees from coming in
physical contact with the Grantee Facilities. Grantee shall be responsible for
debris removal from such activities. If such debris is not removed within twenty-
four (24) hours of completion of the trimming, the City may, at its sole discretion,
remove such debris and charge Grantee for the cost thereof. This section does
no#! in any instance, grant automatic authority to clear vegetation for purposes of
providing a clear path for radio signals. Any such general vegetation clearing will
require a Iand clearing permit.
H. Markers demarcating the pipeli.ne's location shall be placed on
the surface consistent with federal requirements to provide clear warning of the
presence of the pipeline but in a manner that does not interfere with trails or other
public uses in that area. Additionally, Grantee shall place continuous underground
markers demarcating the pipeline's location each time Grantee digs to the pipeline
for any reason.
Section 7. Repair and Emergency Work
In the event of an emergency, the Grantee may commence such repair and
eme�gency response work as required under the circumstances, provided that the
Grantee shall notify the City telephonically during normal business hours (at
253:931.3010 and during non-business hours at 253-876-1985 as promptly as
possible before such repair or emergency work commenees, and in writing as soon
thereafter as possible. Such notification shall include the Grantee's emergency •
contact phone number for the corresponding response activity. For any
emergency or after normal business hour issues involving the Grantee's facilities
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Ordinance No. 6674
Franchise No. 17-22
February 20, 2018
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which requires the Grantee's immediate response the City shall contact the
Grantee at 888-271-8880 which is operated 24 hours a day, seven days a week.
The City may act, at any time, without prior written notice in the case of emergency,
but shall notify the Grantee in writing as promptly as possible under the
circumstances of the nature of the emergency and the actions taken to address it.
Section 8. Damages to City and Third-Party Property
A. Grantee agrees that if any of its actions under this Franchise impairs
or damages any City property, survey monument, or property owned by a third-
party, Grantee will restore, at its own cos# and expense, said property to a safe
eondition and then to the condition it was in immediately prior to being damaged.
Such repair work shall be performed and completed#o the satisfaction of the City
Engineer.
B. If Grantee has failed to perform any work required to be performed
in a timely manner under this Ordinance, or to correct an unsafe condition, fihe City
may itself perForm or have performed such work. Grantee shall pay al) reasonable
costs incurred by the City to perForm such work upon demand of the City.
C. All survey monuments which are disturbed or displaced by Grantee
in its perFormance of any work under this Agreement shall be referenced and
restored by Grantee, as per WAC 332-120, as from time to time amended, and all
applicable federal, state, and local standards and specifications.
Section 9. Location Preference
A. Any structure, equipment, appurtenance or tangible property of a
utility, other than the Grantee's, which was installed, constructed, completed or in
place prior in time to Grantee's application for a permit to construct or repair
Grantee Facilities under this Franchise shall have preference as to positioning and
location with respect to the Grantee Facilities. However, to the extent that the
Grantee Facilities are completed and installed prior to another private utility's
submittal of a permit for new or additional structures, equipment, appurtenances
or tangible property, then the Grantee Facilities shall have priority. These rules
governing preference shall continue in the event of the necessity of relocating or
changing the grade of any City road or Right-of-Way. A relocating utility shall not
necessitate the relocation of another utility that othennrise would not require
relocation. This Section shall not apply to any City facilities or utilities that may in
Ordinance No. 6674
Franchise No. 17-22
February 20, 2018
Page 8 of 27 j
the future require the relocation of Grantee Facilities. Such relocations shall be
governed by Section 11.
B. When eonstructing new facilities, or replacing or reconstructing
facilities, Grantee shall maintain a minimum underground horizontal separation of
ten (10) feet from City water and five (5) feet from City sanitary sewer and storm
sewer facilities; provided, that for development of new areas, the City, in
consultation with Grantee and shall coordinate with other utility purveyors or
authorized users of the Public Way, will develop and follow the City's determination
of guidelines and procedures for determining specific utility locations, subject
additionally to this agreement.
Section 10. Grantee Information
A, Grantee agrees to supply; at no cost to the City, any information
reasonably requested by the City Engineer to coordinate municipal functions with
Grantee's acfivities and fulfill any municipal obligations under state law. Said
information shall include, at a minimum, as-built drawings of Grantee Facilities,
installation inventory, and maps and plans showing the location of existing or
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planned facilities within the City. Said information may be requested either in hard
copy or electronic format, compatible with the City's data base system, as now or
hereinafter existing, including the City's geographic information Service (GIS) data
base. Grantee shall keep the City Engineer informed of its long-range plans for
coordination with the City's long-range plans.
B. Upon the City's reasonable request, in connecfion with the design of
any Public Works Project, Grantee shall verify the location of Grantee Facilities at
no expense to the City. In the event Grantee perForms excavation, the City shall
not require any restoration of the disturbed area in excess of restoration to the
same condition as existed immediately prior to the excavation.
C. The parties understand that Washington law limits the ability of the
Gity to shield from public disclosure any information given to the City. Grantee
shall clearly mark any information that it provides to the City as "Proprietary"
information if Grantee believes that disclosure of that information would be exempt
under the trade secrets exemption in RCW 42.56.270. The City agrees that if it
receives a request for Grantee's proprietary information, it will initially assert the
exemption under 42.56.270, and will notify Grantee of the request.
Ordinance No. 6674
Franchise No. 17-22
February 20, 2018
Page 9 of 27
The City shall not initiate legal action to prevent disclosure of Grantee's
propriefary information. If a requestor files a lawsuit to compel disclosure, Grantee
agrees to defend the action at Grantee's sole expense.
Grantee shall indemnify and hold harmless the City for any loss or liability
for fines, penalties, and eosts (including attorneys fees) imposed on the City
because of non-disclosures requested by Grantee under Washington's open
public records act, provided the City has notified Grantee of the pending request
or Grantee is made aware of the request or claim.
Section 11. Relocation of Grantee Facilities
A. Except as otherwise so required by law, Grantee agrees to relocate,
remove, or reroute its facilities within one hundred and eighty (180) days of being
ordered by the City Engineer at no expense or liability to the City, except as may
be required by RCW Chapter 35.99. Such alternate location for relocation of
Grantee's faci�lities shall be determined and approved jointly by the City and
Grantee at no cost to the City: Pursuant to the provisions of Section 16, Grantee
agrees to protect and save harmless the Gity from any customer or third-party
claims for service interruption or other losses in connection with any such change,
relocation, abandonment, or vacation of the Public Way.
B. If a readjustment or relocation of the Grantee Facilities is
necessitated by a request from a party other than the City (a "Third Party"), that
party shall pay the Grantee the actual costs thereof. Any eontractor doing work
pursuant to contract with the City shall not be considered a Third Party for purposes
of this secfion.
C. Any condition or requirement imposed by the City upon any Third
Party (including, but not limited to, any condition or requirement imposed pursuant
to any contract or in conjunction with approvals or per.mits obtained pursuant to
any zoning, land use, construction or other development regulation)which requires
the relocation of Grantee's Facilities within the Rights-of-Way shall be a condition
or requirement causing relocation of Grantee's Facilities to occur subject to the
provisions of Subsection B above; provided, however in the event the City
reasonably determines and nofifies Grantee that the primary purpose of imposing
such condition or requirement upon such Third party is to cause or facilitate the
construcfion of a Public Works Project to be undertaken within a segment ofi the
Right-of-Ways on the City's behalf and eonsistent with the City's Capital Facility
Plan or Transportation Improvement Program, then Grantee shall relocate its
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Ordinance No. 6674
Franehise No. 17-22
February 20, 2018
Page 10 of 27
Facilities within such segment of the Rights-of-Way in accordance with this
Ag reement.
D. As to any relocation of Grantee's Facilities whereby the cost and
expense thereof is to be borne by Grantee in accordance with this Section 11,
Grantee may, after receipt of written notice requesting such relocation, submit in
writing to the City alternatives to relocation of its Facilities. Upon the City's reeeipt
from Grantee of such written alternatives, the City shall evaluate such alternatives
and shall advise Grantee in writing if one or more of such alternatives are suitable
to aceommodate the work which would otherwise necessitate relocation of
Grantee's Facilities. In evaluating such alternatives; the City shall give each
alternative proposed by Grantee full and fair consideration with due regard to all
facts and circumstances which bear upon the practicality of relocation and
alternatives to relocation. In the event the City determines that such alternatives
are not appropriate; Grantee shall reloeate its Facilities as otherwise provided in
this Agreement.
E. Nothing in this Section 11 shall require Grantee to bear any cost or
expense in connection with the relocation of any facilities under benefit of
easement independent of this Agreement or other rights not arising under this
Agreement, nor shall anything in this Seetion 11 require the City to bear any such
cost or expense. Nothing in this Section 11 shall be construed to be a waiver of
any right of either Grantee or the City to contest any claim or assertion by the other
of responsibility to pay such cost or expense.
F. Subject to ACC 20.10.160, in the event of an emergency posing a
th_reat to public safety or welfare requires the relocation of Grantee's Facilities
within the Rights-of-Way, the City shall give Grantee notice of the emergency as
soon as reasonably practicable. Upon receipt of such notice from fhe City (and
subject to the issuance of any necessary order(s)of the Federal Energy Regulatory
Commission), Grantee shall endeavor to respond as soon as reasonably
practicable to relocate the affeeted Facilities.
Section 12. Abandonment and or Removal of Grantee Facilities
A. Within one hundred and eighty days (180) of Grantee's permanent
cessation of use of the Grantee Facilities, or any portion thereof, the Grantee shall
(subject to any necessa_ry approval(s) and/or order(s) to be provided by FERC
eoncerning abandonment), at the City's discretion, either abandon in place or
remove the affected facilities. Abandonment or removal shall be at the sole cost
Ordinance No. 6674
Franchise No. 17-22
February 20, 2018
Page 11 of 27
and expense of Grantee. Any Facilities left in place shall be made inert by
disconnecting and sealing such Facilities, all in compliance with applicable
regulations and industry standards. The City's consent shall not relieve Grantee
of the obligation and/or costs to subsequently remove or alter such Facilities in the
event the City reasonably determines fhat such removal or alteration is necessary
or advisable for the health and safety of the public, in which case Grantee shall
perForm sueh work at no cost to the City. The obligations contained in this Section
shall survive the expiration, revocation, or termination of this Agreement.
Section 13. Encroachment Management
Grantee shall manage and inspect encroachments as defined by federal
and applicable state and local laws, rules, regulations and industry standards, as
now enacted or hereinafter amended, and any other future laws or regulations that
are applicable to Grantee, the Facilities, and business operations: Upon
notification to Grantee of planned construction by another within ten (10) feet of
Grantee's pipeline, Grantee shall flag the precise location of its Facilities before
the construction commences, provide a representative to inspect the construction
when it commences, and periodically inspect thereafter to ensure that Grantee's
pipeline is not damaged by the construction.
Section 14. Emergency Nianagement, Leaks, Ruptures, and Emergency
Response.
A; Annually, upon the request of the City, Grantee shall meet with the
Valley Regional Fire Authority, the Auburn Police Department, and the City's
Emergency Management Office to coordinate emergency management operations
and, at least once a year, at the request of the City, Grantee personnel shall
actively participate with the Valley Regional Fire Authority and the City in
emergency preparedness drills or planning sessions.
B. Grantee shall have in place, at all times during the term of this
Agreement, a system for remotely monitoring pressures and flows across the
Right=of-Way.
C. During the term of this Agreement, Grantee shall haye a written
emergency response plan and procedure for locating leaks and ruptures and for
shutting down valves as rapidly as possible.
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D. Upon acceptanee of this Agreement, Grantee shall provide the City
with a copy of its emergency response plans and procedures, including, but not
limited to, emergency rupture response.
E. Grantee's emergency plans and procedures shall designate
Grantee's responsible local emecgency response officials and a direct finrenty four
(24) hour emergency contact number for the control center operator. grantee shall,
after being notified of an emergency, cooperate with the City and make every effort
to respond as soon as possible to protect the:public's health, safety and welfare.
F. Grantee shall be solely responsible for all its necessary costs
incurred in responding to any leak, rupture or other release of petroleum products
from Grantee's Facilities, ineluding, but not limited to, detection and removal of any
contaminants from air, earth or water, and all remediation costs.
G. If requested by the City in writing, Grantee shall provide a written
summary concerning any leak or rupture within thirty (30) days of the event,
ineluding, but not limited to, the leak or rupture's date� time, amount, location,
response, remediation and other agencies Grantee has notified,
Section 15. Niaintenance, Inspection, and Testing.
Grantee shall remain solely and separately liable for the function, testing,
maintenance, replacement and/or repair of the Facilities or other acfivities
permitted under this Agreement. Grantee shall operafe, maintain, inspect, and test
the Facilifies in full compliance with all applicable federal, state, and local laws,
rules, regulations, and industry standards, as now enacted or hereinafter
amended, and any other future laws or regulations that are applicable to Grantee,
the Facilities, and business operations.
Section 16. Indemnification and Hold Harmless
A. The Grantee shall defend, indemnify, and hold the harmless from
any and all costs, claims, injuries, damages, losses, suits, or liabilities of any nature
including aftorneys' fees arising out of or in connection with the Grantee's
performance under this Franchise, except to the extent such costs, claims, injuries,
damages, losses, suits, or liabilifies are caused by the sole negligence of the City.
B. The Grantee shall hold the City harmless from any liability arising out
of or in connection with any damage or loss to the Grantee Facilities caused by
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maintenance and/or consfruction work performed by, or on behalf of,the City within
any other City road, Right-of-Way, or other property, except to the extent any such
damage or loss is directly caused by the sole negligence of the City, or its agent
perForming such work.
C. The Grantee acknowledges that neither the Gify nor any other public
ageney with responsibility for firefighting, emergency rescue, public safety or
similar duties within the City has the capability to provide trench, close trench or
confined space rescue. The Grantee, and its agents, assigns, successors, or
contraetors, shall make such arrangements as Grantee deems fit for the provision
of such services. The Grantee shall hold the City harmless from any liability arising
out of or in connecfion with any damage or loss to the Grantee for the City's failure
or inability to provide such services, and, pursuant to the terms of Section 14(A),
the Grantee shall indemnify the City against any and all third-party costs, claims,
injuries, damages; losses, suits, or liabilities based on the City's failure or inability
to provide such services.
D. Acceptance or inspection by the City of any work performed by the
Grantee shall not be grounds for avoidance of this section.
. It is further specifically and expressly understood that the indemnification
provided herein constitutes the Grantee's waiver of immunity under
Industrial Insurance. Title 51 RCW, solely for the purposes of this
indemnification. This waiver has been mutually negotiated by the parties.
The provisions of this section shall survive the expiration or termination of
this Agreement.
E. Grantee shall indemnify, defend and hold the City, its appointed and
elective officials, agents, officers, employees, and volunteers harmless from and
against any and all claims, demands, liability, loss, cost, damage or expense of
any nature whatsoever including all costs and attorney's fees, made against the
City on account of violation of any environmental laws applicable to the Grantee
Facilities, or from any release of or hazardous substances on or from the Grantee
Facilities. This indemnity includes, but is not limited to: (a) liability for a
governmental agency's costs of removal or remedial action for hazardous
substances; (b) damages to nafural resources caused by hazardous substances,
including the reasonable costs of assessing such damages; (c) liability for any
other person's costs of responding to hazardous substances; and (d) liability for
any costs of investigation, abatement, correction, cleanup, fines, penalties, or other
damages arising under any environmental laws.
_ _ _
------------------------------
_ _ _ .
Ordinance No. 6674
Franchise No. 17-22
February 20, 2018
Page 14 of 27
Section 17. Insurance
A. The Grantee shall procure and maintain, or cause its contractors to
maintain (in the case of Professional Liability), for the duration of this Franchise,
insurance against claims for injuries to persons or damage to property which may
arise from or in connection with the performance of the work hereunder by the
Grantee; its agents, representatives, or employees in the amounts and types set
forth below: �
1. Automobile Liability insurance covering all owned, non-
owned, hired, and leased vehicles with a minimum combined single limit for bodily
injury and property damage of $2,000,000.00 (finro million dollars) per accident.
Coverage shall be written on Insurance Services Office (ISO) form CA 00 01 or a
substitute form providing equivalent liability coverage. If necessary,the policy shall
be endorsed to provide contractual liability coverage.
2. Commercial General Liability insurance with limits no less
than $100,000,000.00 (one hundred million dollars) each occurrence,
$100;000,000.00 (one hundred million dollars) general aggregate and a
$100,000�000.00 (one hundred million dollars) products-completed operafions
aggregate limit. Coverage shall be written on ISO occurrence form CG 00 01 and
shall cover liability arising from premises, operations, independent contractors,
products-completed operations, stop gap liability, and personal injury and
advertising injury and liability assumed under an insured contract. There shall be
no endorsement or modifieation of the Commercial General Liability insurance for
liabil.ity arising from explosion; collapse, or underground property damage. To the
extent of the liabilities assumed by Grantee, the City shall be named as an
addifional insured under the Grantee's Commercial General Liabi.lity insurance
policy with respect to the work perFormed under this Franchise using ISO
Additional Insured Endorsement CG 20 10 10 01 and Additional Insured-
Completed Operations endorsement CG 20 37 10 01 or substitufe endorsemenYs
providing equivalent eoverage.
3. Professional Liability insurance with limits no less than
$1,000,000.:00 per claim for all professional engineers or surveyors eontracted by
Grantee to perform services under this Franchise.
4. Workers' Compensation coverage as required by the
Industrial Insurance laws of the State of Washington.
__ _
------------------------------
_ __
Ordinance No. 6674
Franchise No. 17-22
February 20, 2018
Page 15 of 27
B. The insurance policies are to contain, or be endorsed to contain, the
following provisions for Automobile Liability, Professional Liability (if applicable),
and Commercial General Liability insurance:
1. The Grantee's insurance coverage shall be primary insurance
as respects the City. Any insurance, self-insurance, or insurance pool coverage
maintained by the City shall be in excess of the Grantee's insurance and shall not
contribute with it.
2. To the extent of the liabilities assumed by Grantee, the
Grantee's insurance shall be endorsed to state that coverage shall not be
cancelled by either party except after thirty (30) days' prior written notice by
certified mail, return receipt requested; has been given to the City.
C. Acceptability of Insurers. Insurance is to be placed with insurers with
a current A.M. Best rating of not less than A:VII.
D: Verification of Coverage. Grantee shall furnish the City with
documentation of insurer's A.M. Best rating and with original certificates and a
copy of amendatory endorsements, including but not necessarily limited to the
additional insured endorsement, evidencing the insurance requirements specified
herein before commencement of the work.
E. Grantee shall have the right to self-insure any or all of the above-
required insurance. Any such self-insurance is subject to approval by the City.
Furthermore, Grantee may utilize a combination of primary and excess insurance
policies to satisfy the requirements specified herein.
F. Grantee's maintenanee of insuranee as required by this Franchise
shall not pe construed to li.mit the liability of Grantee to the coverage provided by
such insurance, or otherwise limit the City's recourse to any remedy to which the
City is otherwise entitled at law or in equity.
G. Pollution Legal Liability, to be in effect throughout the term of fhis
Franchise, with a limit not less than $50,000;000 per occurrence and in the
aggregate to the extent such coverage is reasonably available in the marketplace.
If the Pollution Legal Liability coverage is purchased on a ``claims made'' basis,
then the Grantee warrants continuation of coverage, either through policy renewals
or the purchase of an extended discovery period, if such extended coverage is
------------------------------
Ordinance No. 6674
Franchise No. 17-22
February 20, 2018
Page 16 of 27
available, for not less than three (3) years from the date of termination of this
Franchise and/or conversion from a "claims made" form to an "occurrence"
coverageform.
H. Any deductibles shall be the sole responsibility of the Grantee. The
insurance certifcate required by this section shall contain a clause stating that
coverage shall apply separately to each insured against whom a claim is made or
suit is brought, except with respect to the aggregate limits of the insurer's Iiability.
I. The indemnity and insurance provisions herein under Secfions 16
and 17 shall survive the termination of this Franchise and shall continue for as long
as the Grantee's Facilities shall remain in or on the Franchise Area or until the
parties execute a new Franchise agreement that modifies or terminates these
indemnity or insurance provisions.
Section 18. Perfo�mance Security
The Grantee shall provide the City with a fnancial guarantee in the amount of Fifty
Thousand Dollars ($50,000.00) running for, or which shall annually automatically
renew over, the term of this Franchise, in a form and substance acceptable to the
City. In the event Grantee shall fail to substantially comply with any one or more
of the provisions of this Franehise, then there shall be recovered jointly and
severally from the prineipal and any surety of such financial guarantee any
damages suffered by City as a result thereof, including but not limited to staff time,
material and equipment costs, compensation or indemnification of third parties,
and the cost of removal or abandonment of facilities hereinabove described.
Grantee specifically agrees that its failure to comply with the terms of Section 22
(Enforcement & Remedies) shall consfitute damage to the City in the monetary
amount set forth therein. Sueh a financial guarantee shall not be construed to limit.
the Grantee's liability to the guarantee amount, or otherwise limit the City's
recourse to any remedy to which the City is otherwise entitled at law or in equity.
Section 19. Relationship of the Parkies
A. Nothing in this Agreement shall be construed to create or confer any
right or remedy upon any person(s) other than the City and Grantee. No action
may be commeneed or prosecuted against any Party by any Third Party claiming
as a Third Party beneficiary of this Agreement. This Agreement shall not release
or discharge any obligation or liability of any Third Party to either Party.
----------------------------
Ordinance No. 6674
Franchise No. 17-22
February 20, 2018
Page 17 of 27
B. Nothing contained in this Agreement shall be construed to create an
association, trust, partnership, agency relationship, or joint venture or to impose a
trust, partnership, or agency duty, obligation or liability on or with regard .to any
party. Each party shall be individually and severally liable for its own duties,
obligations, and liabilities under this Agreement.
C. Grantee accepts any privileges granted by the City in an "as is"
condition. Grantee agrees that the City has never made any representations,
implied or express warranties or guarantees as to the suitability, security or safety
of Grantee's location of facilities or the facilities themselves in public property or
rights of way or possible hazards or dangers arising from other uses of the public
rights of way or other public property by the City or the general public. Grantee
shall remain solely and separately liable for the function, testing, maintenance,
replacement and repair of the pipeline or other activities permitted under this
Agreement.
D. Except as specifically provided herein, this Agreement sha.11 not
create any duty of the City or any of its officials, employees or agents and no
liability shall arise from any acfion or failure to act by the City or any of its officials,
employees or agents in the exereise of powers reserved to the City. Further, this
Agreement is not intended to acknowled.ge, create, imply or expand any duty or
liability of the City with respect to any function in the exercise of its police power or
for any other purpose. Any duty that may be deemed to be created in the City shall
be deemed a duty to the general public and not to any specific party, group or
entity.
Section 20. Successors and Assignees
A. All the provisions, conditions, regulations and requirements herein
contained shall be binding upon the successors, assigns of, and independent
contractors of the Grantee, and all rights and privileges, as well as all obligations
and liabilities of the Grantee shall inure to its successors, assignees and
contractors equally as if they were specifically mentioned herein wherever the
Grantee is mentioned.
B. This Franchise shall not be leased, assigned or otherwise alienated
without the express prior consent of the City by ordinance.
C. Grantee and any proposed assignee or transferee shall provide and
certify the following to the City not less than sixty (60) days prior to the proposed
date of transfer: (a) Complete information setting forth the nature, term and
Ordinance No. 6674
Franchise No. 17-22
February 20, 2018 �
Page 18 of 27
conditions of the proposed assignment or transfer; (b) All information required by
the City of an applicant for a Franchise with respect to the proposed assignee or
transferee; and, (c)An application fee which shall be set by the City, plus any other
eosts actually and reasonably incurred bythe City in processing, and investigating
the proposed assignment or transfer.
D. Prior to the Gity's consideration of a request by Grantee to consent
to a Franchise assignment ortransfer; the proposed Assignee or Transferee shall
file with the City a written promise to uncondifiona.11y accept all terms of the
Franchise, effective upon such transfer or assignment of the Franchise. The City
is under no obligation to undertake any investigation of the transferor's state of
compliance and failure of the City to insist on full compliance prior to transfer does
not waive any right to insist on full compliance fhereafter.
Section 21. Dispute Resolution
A. In the event of a dispute befinreen the City and the Grantee arising by
reason of this Agreement, the dispute shall first be referred to the operational
officers or representatives designated by Grantor and Grantee to have oversight
over the administration of this Agreement. The officers or representatives shall ;,
meet within th.irty (30) calendar days of either party's request for a meeting,
whichever request is first, and the parties shall make a good faith effort to achieve
a resolution of the dispute.
B. If the parties fail to achieve a resolution of the dispute in this manner,
then the City and the Grantee hereby agree that the matter shall be referred to
mediation. The City and the Grantee shall mutually agree upon a mediator to
assist them in resolving their differences, and any expense incidental to mediafion
shall be borne equally by the parties.
C. If either the City or the Grantee are dissatisfied with the outcome of
the mediation, that party may #hen pursue any available judicial remedies. This
Ftanchise shall be governed by and construed in accordance with the laws of the
State of Washington. In the event any suit, arbitration, or other proceeding is
instituted to enforce any term of this Agreement, the parties specifically understand
and agree that venue shall be exclusively in King County, Washington. The
prevailing party in any such action shall be entitled to its attorneys' fees and costs
of suit, which shall be fixed by fhe judge hearing the case, and such fees shall be
included in the judgment.
-----------------------------
Ordinance No. 6674
Franchise No. 17-22
February 20, 2018
Page 19 of 27
D. Subject to state and federa.l regulation, the Grahtee shall be
permitted to continuously operate its Facilities during dispute resolution.
Section 22. Enforcement and Remedies
A. If the Grantee shall willfully violate, or materially breaches any of the
provisions of this Franchise through willful or unreasonable negligenee, or should
it fail to heed or comply with any notice given to Grantee under the provisions of
this agreement, the City may, at its discretion, provide Grantee with written notice
to cure the breach wifhin thirty (30) days of nofification. If the breach cannot be
cured within thirty days, the Parties shall agree upon a reasonable period of time
for cure, and condition the extension of time on Grantee's submittal of a plan to
cure the breach within the specified period, commencement of work within the
original thirty day cure period, and diligent prosecution of the work fo completion.
If the breach is not cured within the specified time, or the Grantee does not comply
wifh the specified conditions, the City may, at its discretion, either (1) revoke fhe
Franchise with no further notification, or (2) claim damages as provided in ACC
20,10.340per day against the finaneial guarantee set forth in Section 18 for every
day after the expiration of the cure period that the breach is not cured.
B. Should the Gity determine that Grantee is acting beyond the scope
of permission granted herein for Grantee Facilities and Grantee Services, the City
shall initiate dispute resolution as set forth in Section 21, above. Should Grantee
fail to participate in dispute resolution in accordance with Section 21, above, or
should Grantee fail to comply with any order by a court addressing the dispute, the
City reserves the right to cancel this Franchise upon thirty days (30) written notice
to Grantee and require the Grantee to apply for, obtain, and comply with all
applicable City permits, franchises, or other City permissions for such actions, and
if fihe Grantee's actions are not allowed under applicable federal and state or City
laws, to compel Grantee to cease-such actions.
Section 23. Compliance with Laws and Regulations
A; In carrying out any authorized activities under the privileges granted
herein, Grantee shall meet accepted industry standards and comply with all
applicable laws, rules, and regulations, of any governmental entity with jurisdiction
over the pipeline and its operation (specifically including, but not limited to, all
applicable requirements, rules, regulations, and orders of FERC). This shall
include all applicable laws, rules and regulations existing at the Effective Date of
this Franchise or that may be subsequently enacted by any governmental entity
Ordinanee No. 6674
Franchise No. 17-22
February 20, 2018
Page 20 of 27
with jurisdietion over Grantee or the pipeline(s) and the Facilities. Furthermore,
nofinrithstanding any other terms of this agreement appearing to the contrary, fhe
Grantee shall be subject to the police power of the City to adopt and enforce
general ordinances necessary to profect the safety and welfare of the general
public in relation to the rights granted in the Franchise Area.
B. Unless pre-empted by or in eonflict with the provisions of any Federal or
State stafute or regulation, the City reserves the right at any time to amend this
Franchise to conform to any hereafter enacted, amended, or adopted federal or
state statute or regulation relating to the public health, safety, and welfare, or
relating to roa.dway regulation, or a City Ordinance enacted pursuant to such
federal or state statute or regulation upon providing Grantee with thirty (30) days
written notice of its action setting forth the full text of the amendment and identifying
the statute, regulation, or ordinance requiring the amendment: Said amendment
shall become automatically effective upon expiration of the notice period unless,
before expiration of that period, the Grantee makes a written call for negotiations
over the terms of the amendment. If the parties do not reach agreement as to the
terms of the amendment within thirty (30) days of the call for negotiations, the City
may enact the proposed amendment, by inco�po�ating the Grantee's concerns to
the rnaximum extent the City deems possible.
C. The City may terminate this Franchise upon thirty (30) days written
notice to the Grantee, if the Grantee fails to comply with such amendment or
modification.
Section 24. License, Tax and Other Charges
This Franchise shall not exempt the Grantee from any future license, tax, or
charge which the City may hereinafter adopt pursuant to authority granted to it
under state or federal law for revenue or as reimbursement for use and occupancy
ofthe Franchise Area.
Section 25. Consequential Damages Limitation
Notwithsta.nding any other provision of this Agreement, in no event shall
either party be Iiable for any special, incidental, indirect, punitive, reliance,
consequential or similar damages.
Ordinance No. 6674
Franchise No. 17-22
February 20, 2018
Page 21 of 27
Section 26. Force Majeure
In the event that either Party is prevented or delayed in the performance of
any of its obligations under this Agreement by reason beyond its reasonable
control (a "Force Majeure Event"), then that Party's performance shall be excused
during the Force Majeure Event. Force Majeure Events shall include, without ,
limitation, war; civil disturbance; flood, earthquake or other Act of God; laws, '
regulations, rules or orders of any governmental agency; sabotage; strikes or
similar labor disputes involving personnel of a party, its contractors or a Third party;
or any failure or delay in the performance by the other party, or a Third Party who
is not an employee, agent or contractor of the Party claiming a Force Majeure
Event, in connectioh with this Agreement. Upon removal or termination of the
Force Majeure Event, the Party claiming a Force Majeure Event shall promptly
perform the affected obligations in an orderly and expedited manner under this ',
Agreement, The Parties shall use all commercially reasonable efforts to eliminate '
or minimize any delay caused by a Force Majeure Event. The occurrence of a
Force Majeure Event shall not alter or impair any of the provisions coneerning
liability and/or insurance as provided in this Agreement:
Section 27. Severability & Survival
In the event that a court or agency of competent jurisdiction declares a
material provision of this Franchise to be invalid, illegal or unenforceable, the
parties shall negotiate in good faith and agree, to the maximum extent practicable
in light of such determination, to such amendments or modifications as are
appropriate actions so as to give e.ffect to the intentions of the parties as reflected
herein. If severance from this Franchise of the partieular provision(s), determined
to be invalid, illegal or unenforceable will fundamentaily impair the value of this
Franchise, either party may apply to a court of competent jurisdiction to reform or
reconstitute the Franchise so as to recapture the original intent of said parficular
provision(s). All other provisions of the Franchise shall remain in effect at all times
during which negotiations or a judicial acfion remains pending.
All provisions, c.onditions and requirements of this Franchise #hat may be
reasonably construed to survive the termination or expiration of this Agreement
shall survive the termination or expiration of the Agreement. The Parties'
respective rights and interests under this Agreement shall inure to the benefit of
their respective successors and assigns.
Ordinance No. 6674
Franchise No. 17-22
February 20, 2018
Page 22 of 27 _
Section 28. Titles
The seetion titles used herein are for reference only and should not be used
for the purpose of interpreting this Franchise.
Section 29. Implementation.
The parties each represent and warrant that they have full authority to enter
into and to perform this Franchise, that they are not in default or violation of any
permit:, license, or similar requirement necessary to carry out the terms hereof, and
that no further approval, permit, license, certification, or action by a governmental
authority is required to execute and perForm this Franchise, except such as may
be routinely required and obtained in the ordinary course of business.
Whenever this Franchise sets forth a time for any act to be perFormed, such
time shall be deemed to be of the essence, and any failure to perform within the
allotted time may be considered a material violation of this Franchise.
Section 30. Entire Agreement
This Franchise, as subject to the appropriate city, state, and federal laws,
codes, and regulations, and the attachments hereto represent the entire
understanding and agreement befinreen the parties with respect to the subject
matter and it supersedes all prior oral negotiations between the parties. All
previous agreements between the parties pertaining to GRANTEE's operation of
its pipeline(s) and/or Facilities are hereby superseded.
Section 31. Effective date.
This Ordinance shall take effect and be in force five days from and after its
passage, approval and publicafion as provided by law.
APR;�-2 2018
INTRODUCED: �
PASSED: Ap�`.'-2 2018
APPROVED: APR;-2 2018
N NCY B US, MAYOR
Ordinance No. 6674
Franchise No: 17-22
February 20, 2018
Page 23 of 27
ATTEST:
Dan' Ile E. Daskam, City Clerk
APPR ED FO M:
_ _ _
Dan'%el B. Heid, City Attorney
. . — - � I'�
Pubhshed: �,a-..�-L. -�, �/��✓�`�=°'-�`�
�—
------------------------------
Ordinance No. 6674
Franchise No. 17-22
February 20, 2018
Page 24 of 27
Olympic Pipe Line Compa�y, LLC. FranchiseAgreement �11-22
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Exhibit A
Ordinance No.6674
Franchise No. 17-22
January 17,2018
Page 25 of 27
Exhibit "B"
Grantee Facilities and Grantee Services
A 14 inch diameter pipeline for the interstate transportation of petroleum
products.
No local service is provided.
------------------------------
Ordinance No. 6674
Franchise No. 17-22
February 20, 2018
Page 26 of 27
EXHIBIT"C"
STATEMEIVT OF ACCEPTANCE
Q�UM�;c �,�� �nc ('_ K c1-� , for itseif, its successors and assigns,
herp, y accep and agrees o bound by ali lawful teRns, conditions and
provisions of the Franchise attached hereto and incorporated herein by this
reference.
[Grantee]
B : �� �ate: � I��J � d'' _
y
Name: ��� ��2,�J
Trtle: �2GS�DE'ni T
STATE OF INP�'n �
)SS.
CO.UNTY QF � )
�h this Z� day of z , 018, befiore me the undersigned, a.
N�tary Public in and for th. State of , duly commissioned and swom,
persortatly appeared; r,J of LC ��C , the company that
executed the within and foregoing ins#rumerrt, and acknowledged the said
instrument to be the free and voluntary act and deed of said company, for fhe uses
and purposes fhe�ein mentioned, and on oath stated that he/she is authorized to
execute said instrument.
IN WITNESS WHEREOF, I have hereunto set my hand an�affixed my official seal
on the date hereinabove set forth.
. N---
S19 re
I JOSEPH A STONE
�S�. I.• NOTARY PUBLIC
NQT RY P BLIC in and for the Sfate of STATE OF WASHINGTON
w,�.1n � , residing at �,..'�on COMMISSION EXPIRES
` AUGUST 22,2021
MY COMMtSSION EXPIRES: a�-�
Ordinance No. fifi74
Franchise No. 17-22
February 2Q, 2018
Page 27 of 27
Page 47 of 91