HomeMy WebLinkAboutO-2651 - Grants pipeline franchise (Special)---------------------------------------
CITY OF MARYSVILLE
Marysville, Washington
ORDINANCE NO.2.&51~_
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF MARYSVILLE,
WASHINGTON GRANTING OLYMPIC PIPE LINE COMPANY, AN INTERSTATE
PIPELINE CORPORATION INCORPORATED IN THE STATE OF DELAWARE, ITS
SUCCESSORS AND ASSIGNS, A NONEXCLUSIVE FRANCHISE TO CONSTRUCT,
OPERATE, MAINTAIN, REMOVE, REPLACE, AND REPAIR EXISTING PIPELINE
FACILITIES,TOGETHER WITH EQUIPMENT AND APPURTENANCES THERETO,
FOR THE TRANSPORTATION OF PETROLEUM PRODUCTS WITHIN AND
THROUGH THE FRANCHISE AREA OF THE CITY OF MARYSVILLE.
WHEREAS, Olympic Pipe Line Company (hereinafter "Company") has applied for a
nonexclusive franchise to operate and maintain an existing petroleum pipeline through
certain public rights of way and property within the City of Marysville (hereinafter the
"City); and,
WHEREAS, the City Council finds that it is in the public interest to specify the rights and
duties of Olympic Pipe Line through a franchise; and
WHEREAS, RCW 35A.47.040 authorizes the City to grant nonexclusive franchises for
the use of City rights-of-way, streets and other designated public properties, public
ways, or other ways;
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF MARYSVILLE,
WASHINGTON DOES HEREBY ORDAIN AS FOLLOWS:
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Section I.Definitions
For the purposes of this Franchise and all exhibits attached hereto, the following
terms, phrases, words and their derivations shall have the meaning given herein.
When not inconsistent with the context, words used in the present tense include the
future, words in the plural include the singular, and words in the singular include the
plural.Words not defined shall be given their common and ordinary meaning.
1.1 Construct or Construction shall mean removing, replacing, and repairing
existing pipeline(s)and/or Facilities and may include, but is not limited to, digging and/or
excavating for the purposes of removing, replacing, and repairing existing pipeline(s)
and/or Facilities.
1.2 Effective Date shall mean the date designated herein, after passage,
approval and legal publication of this Ordinance and acceptance by Company,upon
which the rights,duties and obligations shall come in effect and the date from which the
time requirement for any notice,extension and/or renewal will be measured.
1.3 Environmental Laws shall include the Resource Conservation and
Recovery Act, 42 U.S.C.§6901 et seq.; the Comprehensive Environmental Response,
Compensation,and Liability Act, 42 U.S.C.§9601 et seq.; the Hazardous Materials
Transportation Act, 49 U.S.C.§1801 et seq.; the Federal Water Pollution Control Act,
33 U.S.C.§1257 et seq.; the Clean Air Act, 42 U.S.C.§7401 et seq.; the Toxic
Substances Control Act, 15 U.S.C.§2601 et seq.; the Federal Insecticide, Fungicide,
and Rodenticide Act, 7 U.S.C.§136 et seq.; the Occupational Safely and Health Act,
29 U.S.C.§651 et seq.; the Washington Hazardous Waste Management Act,Chapter
70.105 RCW; and the Washington Model Toxics Control Act,Chapter 70.1050 RCW all
as amended from time to time; and any other valid and applicable federal, state, or local
statute, code, or ordinance or valid and applicable federal or state administrative rule,
requlation,ordinance,order, decree, or other valid and applicable governmental
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authority as now or at any time hereafter in effect pertaining to the protection of human
health or the environment.
1.4 Facilities shall mean the Company's pipeline system, lines, valves, mains,
and appurtenances used to transport or distribute the Company's Petroleum Product(s),
existing as of the date of this Franchise or as those components may be modified or
improved consistent with the terms of this Franchise.
1.5 Franchise shall mean this Franchise and any amendments,exhibits, or
appendices to this Franchise.
1.6 Franchise Area means the Right of Way and certain designated Public
Property within the jurisdictional boundaries of the City, including any areas annexed by
the City (but excluding properties upon which the Company holds a private easement,
license, or other property interest for its Facilities) during the term of this Franchise, in
which case the annexed area shall become subject to the terms of this Franchise.
1.7 Franchise Authoritv means any municipal entity with the legal authority to
regulate the public rights-of-way.
1.8 Hazardous Substance means any hazardous, toxic, or dangerous
substance, material, waste, pollutant, or contaminant, including all substances
designated under the Resource Conservation and Recovery Act, 42 U.S.C.§6901 et
seq.; the Comprehensive Environmental Response,Compensation and Liability Act, 42
U.S.C.§9601 et seq.; the Hazardous Materials Transportation Act, 49 U.S.C.§1801 et
seq.; the Federal Water Pollution Control Act, 33 U.S.C.§1257 et seq.; the Clean Air
Act, 42 U.S.C.§7401 et seq.; the Toxic Substances Control Act, 15 U.S.C.§2601 et
seq.; the Federal Insecticide,Fungicide, Rodenticide Act, 7 U.S.C.§136 et seq.; the
Washington Hazardous Waste management Act,Chapter 70.105 RCW; and the
Washington Model Toxics Control Act,Chapter 70.1050,RCW; all as amended from
time to time; and any other federal, state, or local statute, code or ordinance or lawful
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rule, regulation, order, decree, or other governmental authority as now or at any time
hereafter in effect. The term shall specifically include Petroleum and Petroleum
Products. The term shall also be interpreted to include any substance which, after
release into the environment,will or may reasonably be anticipated to cause death,
disease,behavior abnormalities,cancer, or genetic abnormalities.
1.9 Improve or Improvements shall mean modifications to, but not a change in
the nature of, the existing pipeline(s) or Facilities as required and necessary for safe
operation.
1. 10 Maintenance or Maintain shall mean examining, testing, inspecting,
repairing, and replacing the existing pipeline and/or facilities or any part thereof as
required and necessary for safe operation.
1.11 Petroleum or Petroleum Products shall include, but is not limited to,motor
gasoline, diesel fuel, and aviation jet fuel, and shall exclude natural gas.
1.12 Pipeline Corridor shall mean the pipeline pathway through the
jurisdictional boundaries of the City in which the pipeline(s) and or Facilities of the
Company are located, including any Rights-of-Way,Public Property,Public Ways, Other
Ways,and/or easement over and through private property.
1.13 Public Ways shall mean any highway, street, alley, utility easement
(unless their use is otherwise restricted for other users), or other public Rights-of-way
for motor vehicle or other use under the jurisdiction and control of the City.
1.14 Public Properties shall mean the present and/or future property owned or
leased by the City within the present and/or future corporate limits, or jurisdictional
boundaries of the City.
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1.15 Operate or Operations shall mean the use of the Company's pipeline(s)
and/or Facilities for the transportation,distribution and handling of Petroleum or
Petroleum Products within and through the Franchise Area.
1.16 Other Ways means the highways, streets, alleys, utility easements or other
Rights-of-Way within the City as encompassed by RCW 47.24.020 and 47.52.090.
1.17 Rights-of-Way means the surface and the space above and below streets,
roadways,highways,avenues, courts, lanes, alleys,sidewalks,easements,Rights-of-
Way and similar Public Property, Public Ways or Other Ways and areas located within
the Franchise Area.
Section 2.Purpose.
The City grants this nonexclusive Franchise to Company to operate and maintain
its existing Facilities as a liquid petroleum product delivery system for Company's
business. This Franchise is granted subject to the police powers, land use authority and
franchise authority of the City and is conditioned upon the terms and conditions
contained herein and Company's compliance with any applicable federal,state or local
regulatory programs that currently exist or may hereafter be enacted by any federal,
state or local regulatory agencies with jurisdiction over the Company.The purpose of
this Franchise is to delineate the conditions relating to Company's use of the Public
Rights- of-Way, Public Property, Public Ways, and Other Ways and to create a
foundation for the parties to work cooperatively in the public's best interests after this
Ordinance becomes effective. By granting this Franchise, the City is not assuming any
risks or liabilities there from, which shall be solely and separately borne by Company.
Furthermore,this Franchise is granted upon the express condition that it shall not
in any manner prevent the City from granting other or further franchises in, under, on,
across, over, through, along or below any Rights-of-Ways,Public Property, Public
Ways, and Other Ways. This and other franchises shall, in no way,prevent or prohibit
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the City from using any of its Rights-of-Ways, Public Property, Public Ways, and Other
Ways or affect its jurisdiction over them or any part of them, and the City hereby retains
full power to make all changes, relocations, repairs, maintenance,establishments,
improvements,dedications or vacations of same as the City may seem fit, including the
dedication,establishment,maintenance and improvement of all new Rights-of-Way,
streets, avenues,thoroughfares,and Public Ways, or Other Ways.
Section 3. Rights Conveyed.
3.1 Pursuant to the laws of the State of Washington including, but not limited
to, RCW 35A.47.040 and RCW 80.32.010, the City hereby grants, under the terms and
conditions contained herein, to Company, a corporation organized and existing under
and by virtue of the laws of the State of Delaware, and which is authorized to transact
business within the State of Washington its successors and assigns (subject to and as
provided for in Section 5), the right, privilege, authority and Franchise to Construct,
Operate, Maintain and Improve its Facilities,together with all equipment and
appurtenances as may be necessary thereto, for the transportation and handling of any
Petroleum or Petroleum Products, within the existing Pipeline Corridor passing through
the Franchise Area, such lands being more particularly described in Schedule I, which is
attached hereto and expressly incorporated herein by this reference.
3.2 This Franchise is only intended to convey a limited right and interest as to
that Public Rights-of-Way, Public Property, Public Ways and Other Ways in which the
City has an actual interest. It is not a warranty of title or interest in the City's Rights-of
Way, Public Property, Public Ways and Other Ways. None of the rights granted herein
shall affect the City's jurisdiction over its property, streets or rights of way.
3.3 The limited rights and privileges granted under this Franchise shall not
convey any right to Company to install any new pipeline(s) and! or Facilities without the
express written consent of the City.
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3.4 The Company acknowledges and warrants by acceptance of the rights
and privileges granted herein, that it has carefully read and fully comprehends the terms
and conditions of this Franchise and is willing to and does accept all reasonable risks of
the meaning of the provisions,terms and conditions herein. The Company further
acknowledges and states that it has fully studied and considered the requirements and
provisions of this Franchise, and believes that the same are consistent with all local,
state and federal laws and regulations currently in effect, including the Federal Pipeline
Safety Act (49 U.S.C. 60101 et seq.)and the Pipeline Safety Code of Federal
Regulations (Title 49 CFR Part 186-199). If in the future the Company becomes aware
that a provision of this franchise may be unlawful or invalid, it will not use such potential
invalidity to unilaterally ignore or avoid such provision. Instead, the Company will
promptly advise the City of the potential invalidity or illegality, and the parties will meet
within thirty (30) days and endeavor jointly to cure the invalidity or illegality.
Section 4.Term.
4.1 Each of the provisions of this Franchise shall become effective upon
Company's acceptance of the terms and conditions of this Franchise and shall remain in
effect for ten (10)years thereafter.At any time not more than three (3) years nor less
than one (1)year before the expiration of the Franchise term, the Company may make a
written request and the City may consider, at its sole discretion,renewing this Franchise
for an additional ten (10)year renewal period unless either party expresses its intention
in writing to terminate this Franchise at the conclusion of the ten (10)year term.
4.2 If the parties fail to formally renew or terminate the Franchise prior to the
expiration of its term or any extension thereof, the Franchise shall be extended on a
year-to-year basis (or such term as the parties may mutually agree) until a renewed
Franchise is executed.
Section 5.Assignment and Transfer of Franchise.
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5.1 This Franchise shall not be sold, assigned,transferred,leased or disposed
of,either in whole or in part, nor shall title thereto,either legal or equitable, pass to or
vest in any person or 'entity without the prior written consent of the City's Council, acting
by ordinance or resolution, which consent shall not be unreasonably withheld. Such
consent shall not be deemed to waive any rights of the City to subsequently enforce
non-compliance issues relating to this Franchise that existed at or before the time of the
City's consent.
5.2 If such consent is given by the City then the Company shall, within thirty
(30) days, file with the City a written instrument evidencing such sale,assignment or
transfer of ownership,whereby the assignee(s) or transferee(s)shall agree to accept
and be bound by all of the provisions of this Franchise.
Section 6.Compliance with Laws and Standards.
Company shall, in carrying out any authorized activities under the privileges
granted herein, comply with all valid and applicable local, state and federal laws,
including, but not limited to, Title 49 Code of Federal Regulations, Part 195
Transportation of Hazardous Liquids,environmental laws, and any laws or regulations
that may be subsequently enacted by any governmental entity with jurisdiction over
Company and/or the Facilities.
Section 7.Construction on or within Rights-of Way.Public Properties,Public
Ways, and Other Ways.
7.1 This Section 7 shall apply to all Construction and/or Maintenance done by
Company in the Franchise Area.
7.2 Except in the event of an emergency,Company shall first obtain
applicable permits from the City to perform maintenance or construction work on
Company's Facilities within the Franchise Area. The permit application shall contain
detailed plans and specifications showing the position, depth and location of all such
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Facilities in relation to existing City Rights-of-Ways,Public Property, Public Ways, and
Other Ways, or other City property,hereinafter collectively referred to as the "Plans."
The Plans shall specify the class and type of material and equipment to be used,
manner of excavation,construction,installation, backfill, erection of temporary
structures and facilities, erection of permanent structures and facilities,traffic control,
traffic turnouts and road obstructions,and all other necessary information.The
Company shall file as-built plans and, when available, maps in GIS format with the City
showing the final location of the facilities. Such work shall only commence upon the
issuance of applicable permits, and payment of the associated fees, which permits shall
not be unreasonably withheld or delayed after submission of a complete application.
Except in the event of an emergency, the Company shall provide the City with at least
seventy two (72) hours written notice prior to any construction or maintenance on the
Company Facilities within the Franchise Area.
7.3 In the event of an emergency requiring immediate action by Company for
the protection of the pipeline(s)or Facilities, the City's property or the property, life,
health or safety of any individual, the Company may take action immediately to correct
the dangerous condition without first obtaining any required permit so long as: (1) the
Company notifies the Marysville Fire Department and the Marysville Police Department
through the dispatch system of the emergency; and (2) the Company informs the City
permitting authority of the nature, location, and extent of the emergency,and the work
to be performed, prior to commencing the work if such notification is practical, or where
such prior notification is not practical, the Company shall notify the City permitting
authority on the next business day;and (3) such permit is obtained by the Company as
soon as practicable following cessation of the emergency.
7.4 Before undertaking any of the work,installation,improvements,
construction,repair, relocation, or maintenance authorized by this Franchise, as a
condition precedent to the issuance of any permits by the City, the Company shall, upon
the request of the City, furnish a bond executed by the Company and a corporate surety
authorized to operate a surety business in the State of Washington,in such sum as may
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be set and approved by the City as sufficient to ensure performance of the Company's
obligations under this Franchise.The bond shall be conditioned so that the Company
shall observe all the covenants,terms and conditions and shall faithfully perform all of
the obligations of this Franchise, and to repair or replace any defective work or
materials discovered in the City's road, streets, or property.
7.5 All work done hereunder by Company or upon Company's direction or on
Company's behalf shall be undertaken and completed in a workmanlike manner and in
accordance with the descriptions,plans and specifications provided to the City. The
Company's activities shall be conducted in such a manner as to avoid damage or
interference with other utilities,drains or other structures,and not unreasonably
interfere with public travel, park uses or other municipal uses, and the free use of
adjoining property and so as to provide safety for persons and property. The
Company's Construction and/ or Maintenance shall be in compliance with all valid and
applicable laws and regulations and specifications of governmental agencies with
jurisdiction.
7.6 In case of damage caused by the Company, its agents or employees or by
the Facilities of the Company to Rights-of-Way, Public Ways, or Other Ways, the
Company agrees to repair the damage at its own cost and expense. The Company
shall, upon discovery of any such damage,immediately notify the City. The City will
inspect the damage, and set a time limit for completion of the repair. If the City
discovers damage caused by the Company to Rights-of-Way,Public Ways, or Other
Ways, the City shall give the Company notice of the damage and set a time limit in
which the Company must repair the damage. In the event the Company does not make
the repair as required in this section, the City may repair the damage at the company's
expense.
7.7 The Company shall place and maintain line markers pursuant to federal
regulations within and along the Pipeline Corridor. Additionally,Company agrees to
continue its voluntary practice of placing continuous markers underground,when and
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where appropriate,indicating the pipeline's location each time Company digs to the
pipeline, or such other 'industry best practices' as may from time to time be developed
as a method of alerting excavators of the presence of the pipeline.
7.8 The Company shall continuously be a member of the State of Washington
one number locator service under (RCW 19.122), or approved equivalent, and shall
comply with all such applicable rules and regulations
Section 8.Abandonment or Removal of Facilities.
8.1 The Company shall notify the City of any abandoned Facilities or
cessation of use of any of its Facilities within sixty (60) days after such abandonment or
cessation of use.
8.2 In the event of abandonment or Company's permanent cessation of use of
its Facilities, or any portion thereof within the Franchised Area, the Company shall,
within one hundred and eighty days (180) after the abandonment or permanent
cessation of use, at Company's sole cost and expense secure the Facilities in such a
manner as to cause it to be as safe as is reasonably possible, by removing all
Petroleum Products, purging vapors, displacing the contents of the line with an
appropriate inert material and sealing the pipe ends with a suitable end closure, all in
compliance with valid and applicable regulations, and abandon them in place provided
that portions of the Facilities which are above ground shall be removed at Company's
sole cost and expense.Alternatively,the Company may remove its Facilities.
8.3 In the event of the removal of all or a portion of the Facilities, Company
shall restore the Franchise Area as nearly as possible to a condition that existed prior to
removal of Company's Facilities. Such property restoration work shall be done at
Company's sole cost and expense and to the City's reasonable satisfaction. If Company
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fails to remove or secure the Facilities and fails to restore the premises or take such
other mutually agreed upon action, the City may, after reasonable notice to Company,
remove the Facilities, restore the premises or take such other action as is reasonably
necessary at Company's expense and the City shall not be liable therefore. This remedy
shall not be deemed to be exclusive and shall not prevent the City from seeking a
judicial order directing that the Facilities be removed.
8.4 The City shall not charge the Company franchise fees for pipelines or
pipeline segments abandoned or removed in compliance with this Section. However,
the City's consent to the abandonment of Facilities in place shall not relieve the
Company of the obligation and/or costs to remove, alter or re-secure such Facilities in
the future in the event it is reasonably determined, as adjudged in the sole discretion of
the City, that removal, alteration or re-securing the facilities is necessary or advisable
for the health, safety,necessity and/or convenience of the public, in which case the
Company shall perform such work at no cost to the City.
8.5 The parties expressly agree that the provisions of this Section 8 shall
survive the expiration,revocation or termination of this Franchise.
Section 9.Operations and Maintenance -Inspection and Testing.
9.1 The Company shall Operate and Maintain its Facilities in full compliance
with the applicable provisions of Title 49, Code of Federal Regulations, Part 195, and
WAC 480-75-420, as now enacted or hereafter amended, all environmental laws, and
any other current or future laws or regulations that are applicable to Company's
Facilities, enacted by any governmental entity with jurisdiction over Company or
Company's Facilities.
9.2 At City's request, the Company shall provide, at its sole cost and expense,
a briefing by qualified testing experts to explain the inspection results and Franchisee's
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proposed corrective action(s). Said qualified testing expert may be an employee or
representative of the Company.
9.3 The City shall require all excavators subject to a City grading and/or right-
of-way permit working within 100 feet of the Company's Facilities to notify the Company
at least 48 hours prior to the start of any work and to ensure compliance with the
requirements of the State of Washington one number locator service law (RCW 19.122).
If the Company becomes aware that a third party conducts any excavation or other
significant work that may affect the Facilities, the Company shall conduct such
inspections and/or testing as is necessary to determine that no direct or indirect damage
was done to the Facilities and that the work did not abnormally load the Company's
Facilities or impair the effectiveness of the Company's cathodic protection system.
Upon written request, the Company shall report to the City its inspection and findings.
Section 10.Encroachment Management.
10.1 The Company shall maintain a written program to prevent damage to its
Facilities from excavation activities, as required by applicable state and federal
gUidelines.
10.2 The Company and the City shall comply with applicable and valid federal,
state and local requirements regarding encroachment management,including RCW
19.122 (one-call system).
Section 11. Leaks, Spills and Emergency Response.
11.1 The Company warrants that it will maintain an Emergency Response Plan
that is in compliance with the applicable requirements of local, state and federal
agencies with jurisdiction.(Emergency Response Plan available on Information
Sharing Website). Upon written request by either party, the parties agree to meet
periodically to review the Emergency Response Plan and procedure.
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The Company's emergency plans and procedures shall designate the
Company's responsible local emergency officials and a direct 24 hour emergency
contact number for control center operator. The Company 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.
11.2 The Company shall cooperate with the City and respond to protect public
health and safety in the event of a pipeline emergency. The Company warrants that it
will at all times have available, on the county level,sufficient emergency response
equipment and materials to immediately and fully respond to any spill, leak, rupture or
other release of Petroleum Products or Hazardous Substances from Company's
pipeline(s)and/or Facilities and that Company shall be solely responsible for all
reasonably necessary costs incurred by any agency in responding appropriately to any
spill, leak, rupture or other release of Petroleum Products or Hazardous Substances
from Company's pipeline(s)and/or Facilities, including, but not limited to,detection and
removal of any contaminants from, earth or water, all remediation costs,equipment
replacement, and staffing costs,except for any spill, leak, or other release that results
from the sole negligence or willful misconduct of the city or its contractors.Any such
costs shall be considered extraordinary costs that shall not be borne by the City and
shall not be considered administrative expenses of the City. Nothing in this Section
shall be construed as limiting the Company's right to seek recovery from third parties.
11.3 Leaks, spills, ruptures and other emergencies shall be investigated
and reported as required by applicable state and local regulations and the City shall be
notified according to Section 7.3 of this franchise.
Section 12.Required Relocation of Facilities
12.1 In the event that the City undertakes or approves the construction of, or
changes to the grade or location of, any water, sewer or storm drainage line, street,
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sidewalk, or any other Improvement Project and the City determines that the
Improvement Project reasonably requires changes to or the relocation of Company's
Facilities, then Company shall make such changes or relocations as required herein at
Company's sole cost,expense and risk.
12.2 The City shall provide the Company reasonable written notice of any
Improvement Project in the interest of public health, safety, welfare,necessity and/or
convenience, that requires changes to or the relocation of Company's Facilities. The
City will endeavor, where practical, to provide the Company at least one (1) year prior
written notice, or such additional time as may reasonably be required, of such
Improvement Project. However, nothing in this Section shall be construed as to relieve
Company of its duty and obligation to relocate its Facilities to accommodate any
Improvement Project undertaken by the City after written notice of any Improvement
Project.
12.3 The City shall further provide the Company with copies of pertinent
portions of the final plans and specifications for such Improvement Project so that the
Company may make the required changes to or relocate its facilities to accommodate
such Improvement Project.
12.4 The Company may, after receipt of written notice requiring changes to or
relocation of its Facilities under Section 12.2,submit to the City, within ninety (90) days,
written alternatives to such relocation. The City shall evaluate such alternatives and
advise the Company in writing if one or more of the alternatives are suitable to
accommodate the Improvement Project that would otherwise necessitate changes to or
relocation of the Facilities.If so requested by the City, the Company shall submit
additional information to assist the City in making such evaluation including actual field
verification of the location(s)of the Company's underground Facilities within the
Improvement Project area by excavating (e.g., pot holing), at no expense to the City.
The City shall give each alternative proposed by the Company full and fair consideration
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but retains sole discretion to decide whether to utilize its original plan or an alternative
proposed by the Company.
12.5 If any portion of the Company's Facilities that has been required by the
City to be relocated under the provisions of this section is subsequently required to be
relocated again within five (5) years of the original relocation, the City will bear the entire
cost of the subsequent relocation.
12.6 The Company shall not be required to relocate its Facilities at its expense
for the benefit of private developers or third party projects.However in the event the
City reasonably determines and notifies the Company that the primary purpose for
requiring such changes to or relocation of the Company's facilities by a third party is to
cause or facilitate the construction of an Improvement Project consistent with the City
Capital Investment Plan;Transportation Improvement Program; or the Transportation
Facilities Program, or other similar plan, then the Company shall change or otherwise
relocate its Facilities in accordance with Section 12.1 at Company's sole cost,expense
and risk.
12. 7 The City shall work cooperatively with the Company in determining a
viable and practical route within which the Company may relocate its facilities under
Section 12.1, in order to minimize costs while meeting the City's project timelines and
objectives. The City's requirements with regard to the required changes or relocation
(i.e. depth of cover,distance from other utilities, etc.) must not be unreasonable and
not inconsistent with applicable federal and state requirements however, nothing in this
section shall be construed as to limit the City's police power, land use authority,
franchise authority or the City's authority to regulate the time, place and manner of
Company's use of the Public Rights-of-Way,Public Property, Public Ways and Other
Ways.
12.8 Upon receipt of the City's reasonable notice, plans and specifications per
Section 12.1, the Company shall take all necessary and prudent measures to complete
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relocation of such facilities so as to accommodate the Improvement Project at least ten
(10)calendar days prior to commencement of the Improvement Project or such other
time as the parties may agree in writing.
12.9 The City shall take reasonable steps to cooperate with the Company on
any effort by the Company to apply for and obtain any local, state or federal funds that
.may be available for the relocation of the Company's Facilities provided however that
the Company's application for any such funds shall not delay the City Improvement
Project. To the extent such funds are made available, the Company may apply funds
towards the costs incurred to relocate the Company's Facilities.
Section 13.Violations,Remedies and Termination.
13.1 The Company shall be in compliance with the terms of this Franchise at all
times. The City reserves the right to apply any of the following remedies, alone or in
combination,in the event Company violates any material provision of this Franchise.
The remedies provided for in this Franchise are cumulative and not exclusive;the
exercise of one remedy shall not prevent the exercise of another, or any rights of the
City at law or equity.
13.2 The City may terminate this Franchise if the Company materially breaches
or otherwise fails to perform, comply with or otherwise observe any of the terms of this
Franchise, and fails to cure or make reasonable effort to cure such breach within thirty
(30)calendar days of receipt of written notice thereof, or, if not reasonably curable
within thirty (30)calendar days, within such other reasonable period of time as the
parties may agree upon.
13.3 Either party may invoke the Dispute Resolution clause contained in
Section 14 of this Franchise as it deems necessary with regard to termination.
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13.4 If the Company's right to operate its Facilities within the Franchise Area is
ultimately terminated,the Company shall comply with the terms of this Franchise,
regarding removal and/or abandonment and restoration of the Facilities and with all
directives of applicable federal and state agencies with jurisdiction.
Section 14. Dispute Resolution
14.1 In the event of a dispute between the City and the Company arising by
reason of this Franchise,or any obligation hereunder, the dispute shall first be referred
to the representatives designated by the City and the Company to have oversight over
the administration of this Franchise. Said officers or representatives shall meet within
thirty (30)calendar days of either party's request for said meeting, and the parties shall
make a good faith effort to attempt to achieve a resolution of the dispute.
14.2 In the event that the parties are unable to resolve the dispute under the
procedure set forth in Section 14.1, then the parties hereby agree that the matter shall
be referred to mediation.The parties shall endeavor to select a mediator acceptable to
both sides. If the parties cannot reach agreement, then each party shall secure the
services of a mediator,who will in turn work together to mutually agree upon a third
mediator to assist the parties in resolving their differences.Any expenses incidental to
mediation shall be borne equally by the parties.
14.3 If either party is dissatisfied with the outcome of the mediation,that party
may then pursue any available judicial remedies, provided, that if the party seeking
judicial redress does not substantially prevail in the judicial action, it shall pay the other
party's reasonable legal fees and costs incurred in the judicial action.
14.4 SUbject to state and federal regulation, the Company shall be permitted to
continuously operate its Facilities during dispute resolution.
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Section 15. Indemnification
15.1 General Indemnification.Except for environmental matters, which are
covered by a separate indemnification in Section 15.2 below, the Company shall
indemnify, defend and hold harmless the City, it agents, officers or employees,from any
and all liability, loss, damage, cost, expense, and any claim whatsoever,including
reasonable attorneys'and experts' fees incurred by the City in defense thereof,whether
at law or in equity, arising out of or related to,directly or indirectly, the construction,
operation, use, location, testing, repair, maintenance, removal,abandonment or
damage to the Company's Facilities, or from the existence of the Company's pipeline
and other appurtenant facilities, and of the products contained in,transferred through,
released or escaped from said pipeline and appurtenant facilities, from any and all
causes whatsoever,except the City's sole negligence and except for any incidence of
the City's non-compliance with Section 10.3, above (One-Call regulations).If any action
or proceeding is brought against the City by reason of the pipeline or its appurtenant
facilities, the Company shall defend the City at the Company's complete expense,
provided that, for uninsured actions or proceedings,defense attorneys shall be
approved by the City, which approval shall not be unreasonably withheld.
15.2 Environmental Indemnification. The Company shall indemnify, defend and
hold harmless the City, it agents, officers or employees,from and against any and all
liability, loss, damage, expense, actions and claims (unless such liability, loss, damage,
expense,actions and claims result from the City's noncompliance with Section 10.3
above) either at law or in equity, including, but not limited to, costs and reasonable
attorneys' and experts'fees incurred by the City in defense thereof, arising from (a)
Company's violation of any environmental laws applicable to the Facilities or (b) from
any release of a hazardous substance on or from the 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 natural 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)
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liabilityfor any costs of investigation, abatement, correction, cleanup, fines, penalties, or
other damages arising under any environmental laws; and (e) liability for personal injury,
property damage, or economic loss arising under any statutory or common-law theory.
Section 16. Insurance.
16,1 The Franchisee shall procure and maintain for the duration of the Franchise,
insurance,or provide self-insurance, against all claims for injuries to persons or
damages to property which may arise from or in connection with the exercise of the
rights, privileges and authority granted hereunder to the Franchisee, its agents,
representatives or employees. The Franchisee shall provide an insurance certificate,
together with an endorsement naming the City, its officers, elected officials, agents,
employees, representatives, engineers, consultants and volunteers as additional
insureds, to the City upon the Franchisee's acceptance of this Franchise, and such
insurance certificate shall evidence the following minimum coverages:
A.Commercial genera/liability insurance including coverage for premises -
operations, explosions and collapse hazard, underground hazard and products
completed hazard, with limits not less than:
$100,000,000 per occurrence and in the aggregate for bodily injury or
death to each person; and in the aggregate for property damage resulting
from anyone accident; and in the aggregate for general liability to the
extent such coverage is reasonably available in the marketplace.
B. Automobile liabilityfor owned, non-owned and hired vehicles with a limit of
$2,000,000 for each person and $2,000,000 for each accident to the extent such
coverage is reasonably available in the marketplace;
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C. Worker's compensation within statutory limits and employer's liability
insurance with limits of not less than $2,000,000 to the extent such coverage is
reasonably available in the marketplace.
16.2 Any deductibles shall be the sole responsibility of the Company. The
insurance certificate required by this Section shall contain a clause stating that
coverage shall apply separately to each insured against whom claim is made or suit is
brought, except with respect to the aggregate limits of the insurer's liability.
16. 3 The Company's insurance shall be primary insurance with respect to the
City, its officers, officials, employees, agents, consultants, and volunteers. Any
insurance maintained by the City, its officers, officials, employees, consultants, agents,
and volunteers shall be in excess of the Company's insurance and shall not contribute
with it.
16.4 In addition to the coverage requirements set forth in this Section, the
certificate of insurance shall provide that:
"The above described policies will not be canceled before the expiration
date thereof, without the issuing company giVing sixty (60) days written
notice to the certificate holder."
16.5 The Company shall furnish the City with certificates of insurance and
original endorsements evidencing the coverage required by this Section upon
acceptance of this Franchise. The certificates and endorsements shall be signed by a
person authorized by the insurer to bind coverage on its behalf and must be received
and approved by the City prior to the commencement of any work.
16.6 The indemnity and insurance provisions herein under Sections 15 and 16
shall survive the termination of this Franchise and shall continue for as long as the
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Company'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 17.Annual Franchise Fee.
17.1 In consideration for granting this Franchise and for the use of the Franchise
Area, there is hereby established an annual fee of twelve thousand dollars ($12,000).
The Fee is intended to cover the City's reasonable costs related to administering the
Franchise pursuant to the City's fee schedule.
17.2 The annual fee shall increase each year throughout the term of this
Franchise and any renewal terms by the amount of inflation as determined by the
Consumer Price Index for the Seattle-Everett Metropolitan Area. Each increase shall
become effective on the anniversary date of this Franchise each year.
17.3 Each annual payment shall cover the next twelve (12) month period and
shall be paid not later than the anniversary date of the Effective Date of this Franchise.
Interest shall accrue on any late payment at the rate of twelve percent (12%) per
annum. Such interest shall be in addition to any applicable penalties for late payment.
Any partial payment shall first be applied to any penalties, then interest, then to
principal.
17.4 The Franchise fee set forth in Section 17.1 does not include, and the
Company agrees that it is responsible for, payments associated with the City's
administrative expenses including but not limited to the City's expenses incurred in
reviewing,inspecting,licensing, permitting or granting any other approvals necessary
for the Company to operate and maintain its Facilities or for any inspection or
enforcement costs thereunder (i.e.,customary permitting fees).Additionally,the
foregoing annual fee does not include any generally applicable taxes that the City may
legally levy. The Company shall bear the cost of publication of this Ordinance.
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Section 18.Legal Relations.
18.1 The Company accepts any privileges granted hereunder by the City to the
Franchised Area in an "as is" condition. The Company agrees that the City has never
made any representations,implied or express warranties or guarantees as to the
suitability,security or safety of the location of the Company's Facilities or the Facilities
themselves or possible hazards or dangers arising from other uses or users of the
Rights-of Way, Public Property, Public Ways and Other Ways including by the City, the
general public or other utilities. As between the City and the Company, the Company
shall remain solely and separately liable for the function, testing,maintenance,
replacement and/or repair of the Facilities or other activities permitted hereunder.
18.2 The Company hereby waives its Workers Compensation immunity under
Title 51 RCW in any cases involving the City and affirms that the City and the Company
have specifically negotiated this provision, to the extent it may apply.
18.3 This Franchise Ordinance shall not create any duty of the City or any of its
officials,employees or agents and no liability shall arise from any action or failure to act
by the City or any of its officials,employees or agents in the exercise of powers
reserved herein. Further, this Ordinance is not intended to acknowledge,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 hereunder shall be deemed a duty to the general public and not to any
specific party, group or entity.
18.4 This Franchise shall be governed by, and construed in accordance with,
the laws of the State of Washington.
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Section 19. Company's Acceptance.
The City may void this Franchise Ordinance if the Company fails to file its
unconditional acceptance of this Franchise within thirty (30)calendar days from the final
passage of same by the City Council. The Company shall file its unconditional written
acceptance with the City Clerk of the City of Marysville.
Section20. Notice.
20.1 All notices, demands, requests, consents and approvals which may, or are
required to be given by any party to any other party hereunder,shall be in writing and
shall be deemed to have been duly given if delivered personally,sent by facsimile, sent
by a nationally recognized overnight delivery service, or if mailed or deposited in the
United States mail and sent by registered or certified mail, return receipt requested,
postage prepaid to:
City:
Chief Administrative Officer
City of Marysville
1049 State Avenue
Marysville,WA 98270
With a copy to:
Grant Weed
City of Marysville
1049 State Ave.
Marysville,WA 98270
Company:
Olympic Pipe Line Company Attn:President
2319 Lind Avenue S.w.
Renton,Washington 98055
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with copy to:
Mark Johnsen
Karr Tuttle Campbell
1201 Third Avenue, Suite 2900
Seattle,Washington 98101
or to such other address as the foregoing parties hereto may from time-to-time
designate in writing and deliver in a like manner. All notices shall be deemed complete
upon actual receipt or refusal to accept delivery. Facsimile transmission of any signed
original document,and retransmission of any signed facsimile transmission shall be the
same as delivery of an original document.
20.2 To ensure effective cooperation, the Company and the City shall each
designate a representative responsible for communications between the Parties.
Section 21.Miscellaneous.
21.1 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 effect to the intentions of the parties as reflected herein.If severance from
this Franchise of the particular provision(s)determined to be invalid, illegal or
unenforceable will fundamentally 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 particular provision(s). All other provisions of the
Franchise shall remain in effect at all times during which negotiations or a judicial action
remains pending.
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21.2 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.
21.3 In the event that the Company is prevented or delayed in the performance
of any of its obligations under this Franchise by reason(s) beyond the reasonable
control of the Company, then the Company's performance shall be excused during the
Force Majeure occurrence.Upon removal or termination of the Force Majeure
occurrence the Company shall promptly perform the affected obligations in an orderly
and expedited manner under this Franchise or procure a substitute for such obligation
or performance that is satisfactory to the City. The Company shall not be excused by
mere economic hardship nor by misfeasance or malfeasance of its directors, officers or
employees.
21.4 The Section headings in this Franchise are for convenience only, and do
not purport to and shall not be deemed to define, limit, or extend the scope or intent of
the Section to which they pertain.
21.5 By entering into this Franchise, the parties expressly do not intend to
create any obligation or liability, or promise any performance to, any third party, nor
have the parties created for any third party any right to enforce this Franchise.
21.6 This Franchise and all of the terms and provisions shall be binding upon
and inure to the benefit of the respective successors and assignees of the
parties.
21.7 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
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is required to execute and perform this Franchise,except such as may be routinely
required and obtained in the ordinary course of business.
21.8 The Effective Date of this Franchise shall be five (5)days after publication,
in short form, of the ordinance and upon receipt of an executed acceptance document
from the Company.
PASSED by the City Council and APPROVED by the Mayor this JO#.day of
.T~,2006.
CITY OF MARYS2BYiL.~!dDENISeKENDALL,MAYOR
Attest:
BY~{,~1;CITY CLERK
Approved as to form:
By:,
GRANT K.WEED,CITY ATIORNEY
Date of Publication:
Effective Date:
0'1 ll-z..)0 fo
_~O....:....1 \n{,,&
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UNCONDITIONAL ACCEPTANCE BY OLYMPIC PIPE LINE COMPANY:
I, the undersigned official of Olympic Pipe Line Company, am authorized to bind
Olympic Pipe Line Company and to unconditionally accept the terms and
conditions of the foregoing Franchise (Ordinance No.'Uo5U,which are hereby
accepted by Olympic Pipe Line Company this /3 </+-day of ~1'1
2006.
Subscribed and sworn to before me this Is
URis leln
Notary PubrlC,State 01 Washington
My Commission ExpIres July I,2009
Notary Public in and for the State of Washington
My commission expires r2 1-0 I -f)1
Le )1/1
ClprK
~/y
Name:(,.f/,'e
Title:})?L/I;
'f-f".
Received on behalf of the City this 13 day of ------'=-"-'--"'1--'20oC.
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