HomeMy WebLinkAbout4407ORDINANCE NO. 4407
AN ORDINANCE of the City Council of the
City of Kent, Washington, granting to Olympic Pipe
Line Company, LLC an interstate pipeline
corporation incorporated in the State of Delaware, 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 Kent.
RECITALS
A. Olympic Pipe Line Company, LLC ("Olympic") has applied for a
nonexclusive franchise to construct, operate and maintain an existing
petroleum pipeline through certain public rights of way and property within
the City of Kent ("City"). Olympic operates a liquid gas pipeline that runs
from Ferndale, Washington to Portland, Oregon and its current franchise
with the City expires in June 2O2L.
B, The Federal Pipeline Safety Act,49 U.S.C' 5 60101 controls and
regulates the matters relating to the safety, design, construction,
installation, testing and inspection of Olympic's pipeline and preempts much
of the City's authority to control and regulate these matters'
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C. RCW 35A.47.O4O authorizes the City to grant nonexclusive
franchises for the use of public streets and other public ways under
conditions set by ordinance,
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF KENT,
WASHINGTON, DOES HEREBY ORDAIN AS FOLLOWS:
ORDINANCE
SECTION 7. - Franchise Granted. The Franchise Agreement between
the City of Kent and Olympic Pipe Line Company, LLC, substantially in the
form attached and incorporated as Exhibit A, is hereby granted. Upon
Olympic's acceptance of the Franchise Agreement, the Mayor is authorized
to execute the same on behalf of the City of Kent, subject to those changes
that are not material in nature and may be authorized by the City Attorney.
SECTION 2, - Mayoral Authorization The Mayor is further
authorized to execute all documents necessary to implement the full terms
of the negotiated franchise.
9E9TION 3, - City Clerk Directed to Publish. The city clerk is
directed to publish notice of the franchise's grant prior to its effective date,
which publication shall occur at least once in a newspaper of general
circulation in the City. The publication shall include language substantially
similar to the following, which the City Clerk is authorized to amend to
properly identify the web address where a complete copy of the Franchise
Agreement may be located:
AN ORDINANCE of the City Council of the City of Kent,
Washington, was adopted on July 20,202L, which granted Olympic
pipe Line company, LLC, a 10-year non-exclusive franchise
agreement; authorized the Mayor to sign all documents necessary to
implement the full terms of the negotiated agreement; and directed
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the City Clerk to publish notice of Council's grant of this franchise. A
complete copy of the Franchise Agreement is available through the
City Clerk's office, located at 220 Fourth Avenue South in the City of
Kent, or online at https :/lwww.codepublishing.com/W AlKent/ .
SECTION 4. - Severability. If any one or more section, subsection,
or sentence of this ordinance is held to be unconstitutional or invalid, such
decision shall not affect the validity of the remaining portion of this ordinance
and the same shall remain in full force and effect'
SECTION 5. - Corrections by city clerk or code Reviser. Upon
approval of the City Attorney, the City Clerk and the code reviser are
authorized to make necessary corrections to this ordinance, including the
correction of clerical errors; ordinance, section, or subsection numbering; or
references to other local, state, or federal laws, codes, rules, or regulations.
SECTION 6, - Effective Date. This ordinance, being an exercise of a
power specifically delegated to the City's legislative body, is not subject to
referendum. It shall be published and will take effect thirty (30) days after
its passage. The Franchise Agreement, however, shall become effective only
upon its acceptance by Olympic Pipe Line Company, LLC and execution by
the Mayor. Should Olympic fail to timely file its written acceptance of the
Franchise Agreement, Olympic will be deemed to have rejected and
repudiated the Franchise Agreement and the franchise will be voidable by
the City.
DANA RA H, MAYOR
July 20,202L
Date Approved
ATTEST:
LERK
July 2O,2O2L
Date Adopted
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KIMBERLEY KOMOTO, CITY
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APPROVED AS TO
UR"PATRICK, CITY ATTORNEY
July 23,202L
Date Published
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Olympic Pipe Line Company LLC ("Olympic") and City of Kent Franchise
Ag reement (" Fra nchise")
EXHIBIT A
FRANCHISE AGREEMENT
SECTION 7. - Definitions. Where used in this Franchise, these
terms have the following meanings. Words not defined will be given their
common and ordinary meaning.
1.1. Construct or Construction means removing, replacing, and repairing
existing pipeline(s) or Facilities and may include, but is not limited to,
digging or excavating for the purposes of removing, replacing, and repairing
existing pipeline(s) or Facilities.
L.2. Effective Date means the date designated, after passage, approval
and legal publication of this Ordinance and acceptance by Olympic, upon
which the rights, duties and obligations will come in effect and the date
from which the time requirement for any notice, extension or renewal will
be measured.
1.3. Emerqency means an unforeseen event or set of circumstances which
demands immediate action to preserve or protect public health, life or
property.
L.4. Emergencv Manaqement Laws mean any applicable federal, state or
local rules and regulations relating to emergency mitigation, preparedness,
response, and recovery which may include Homeland Security Presidential
Directive (HSPD) 5 establishing the National Incident Management
System (*NIMS'), the Revised Code of Washington ("RCW") Chapter 38.52,
and the Washington Administrative Code (*WAC") Chapter 118-30. Also
included are chapter 118-40 WAC Hazardous Chemical Emergency
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Response Planning and Community Right to Know Reporting and chapter
7O.L36 RCW Hazardous Materials Incidents.
1.5. Environmental Laws mean the Resource Conservation and Recovery
Act,42 U.S,C. g 6901 et seq.; the Comprehensive Environmental Response,
Compensation and Liability Act, 42 U,S.C, S 9601 et seq.; the Hazardous
Materials Transportation Act,49 U.S.C. g 5101 et seq,; the Federal Water
Pollution Control Act, 33 U.S.C. g 7257 et seq.; the Clean Air Act, 42 U.S.C.
9740L et seq.; the Toxic Substances Control Act, 15 U.S.C. g 2601 et seq.;
the Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S'C' 5 136 et
seq.; the Occupational Safety and Health Act, 29 U.S'C' 5 651 et seq.; the
Washington Hazardous Waste Management Act, chapter 70A,300 RCW; and
the Washington Model Toxics Control Act, chapter 70A.305 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, regulatiOn, ordinance, order, decree, or other
valid and applicable governmental authority as now or at any time hereafter
in effect pertaining to the protection of human health or the environment.
1,6. Facilities mean Olympic's pipeline system, lines, valves, mains, and
appurtenances used to transport or distribute Olympic'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.
L.7. Franchise means this Franchise and a ny amendments, exhibits, or
appendices to this Franchise.
1.8. Franchise Area means the following locations in which Facilities have
been installed:
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STREET WIDTH APPROX. DISTANCE/LOCATION
Across S. 228th St. 60 feet L75o'EICL 68th Ave' S.
Across S. 212th St. 60 feet L75o'EICL 68th Ave. S.
Across S. Smith St. 60 feet L775'EICL 68th Ave. S'
Across W. Meeker St. 60 feet L775'EICL 68th Ave. S'
Across W. Willis St. 60 feet 75O'W|CL 5th Ave.
Across Willis St.(SR-516)150 feet 750'WlCL 5th Ave.
Across S. 259th St. 60 feet L275'WCL 3'd Ave.
Across S. 262nd St. 60 feet 2L5O' E/CL West Valley Hwy'
Across W. James St. 66 feet L775' E/WL Section 13, T 22 N,
R 4 E, W.M.
Franchise Area also includes any Right-of-Way, Public Way, Other Ways or
designated Public Property within the jurisdictional boundaries of the City
where the Facilities may already be located that is not listed within this
Section 1.8, including any areas annexed by the City (but excluding
properties annexed upon which Olympic holds a private easement, license,
or other property interest for its Facilities) during the term of this Franchise,
in which case the annexed area will become subject to the terms of this
Franchise.
1.9. Hazardous Substance(s) 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. S 6901 et seq.; the Comprehensive Environmental Response,
Compensation and Liability Act, 42 U.S.C.5 9601 et seq,; the Hazardous
Materials Transportation Act,49 U.S.C. 5 5101 et seq.; the Federal Water
Pollution Control Act, 33 U.S.C. g 1257 et seq.; the Clean Air Act, 42 U.S.C'
g74OL et seq.; the Toxic Substances Control Act, 15 U.S.C, 5 2601 et seq,;
the Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C, 5 136 et
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Seq.; the Washington Hazardous Waste Management Act, chapter 70A.300
RCW; and the Washington Model Toxics Control Act, chapter 70A.305 RCW;
all as amended from time to time; and any other federal, state or local
statute, code or ordinance or lawful rule, regulation, order, decree or other
governmental authority as now or at any time hereafter in effect. The term
will specifically include Petroleum and Petroleum Products. The term will 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.
1.10. Improve or Improvements mean modifications to, but not a change
in the basic nature, size or location of, the existing pipeline(s) or Facilities,
as required or necessary for safe operation.
1.11. Laws mean any federal, state, or municipal code, statute, ordinance,
decree, executive order, guideline, regulation, regulatory program, rule,
specification, standard, Environmental Laws, Pipeline Operation and Safety
LaWs, or governmental authority, as they exist, are amended, or may be
created, that relate to Petroleum, Petroleum Operations (as defined within
this Section 1), hazardous materials, maintenance or improvement of
Facilities, as they exist or may be amended'
L.L2. Maintenance or Maintain meanS examining, testing, inspecting,
repairing, and replacing the existing pipeline(s) or Facilities or any part
thereof as required or necessary for safe operation.
1.13. Operate or Operations means the use of Olympic's pipeline(s) or
Facilities for the transportation, distribution and handling of Petroleum or
Petroleum Products within and through the Franchise Area.
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L.L4. Other Ways mean 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.
1.15. Petroleum or Petroleum Products mean and includes, but is not limited
to motor gasoline, diesel fuel, and aviation jet fuel, and will exclude natural
gas.
1.16. Pipeline Corridor means the pipeline pathway through the
jurisdictional boundaries of the City in which the pipeline(s) or Facilities of
Olympic are located, including any Rights-of-Way, Public Property, Public
Ways, Other Ways, or easements over and through private property.
1.L7. Pipeline Operation and Safety Laws mean any valid and applicable
federal, state or local rules and regulations relating to the operations,
management, maintenance, damage prevention, public education,
emergency planning and response or other activities relating to hazardous
liquid pipelines, which includes the Federal Pipeline Safety Act, 49 U.S.C' 5
60101 et seq. and the Pipeline Safety Code of Federal Regulations, 40 CFR
Parts 186-199, all as amended from time to time and any other valid and
applicable federal, state or local law'
1.18. Public Improvement is as defined within Section L2 and collectively
includes traffic conditions, public safety, dedications of new Rights-of-Way,
the establishment and improvement of new Rights-of-Way, widening or
improvement of existing Rights-of-Way or both, street vacations, freeway
construction, change or establishment of street grade, or the construction
of any public improvement, any public facilities or structure by the City or
any governmental agency acting in a governmental capacity or as otherwise
necessary for the operations of the City or other governmental entity'
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1.19, Public Way(s) 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.
LzO. Public Proper:ly means the present or future property owned or leased
by the City within the present or future corporate limits, or jurisdictional
boundaries of the City.
1.2L. Right(s)-of-Way means the surface and the space above and below
and appurtenant tO streets, roadways, highways, avenues, courts, lanes,
alleys, sidewalks, easements, and similar Public Property, Public Ways or
Other Ways and areas located within the Franchise Area.
SECTION 2.- Franchise Granted
2.L. Franchise Granted. Pursuant to RCW 35A.47.04O, the City does
hereby grant to Olympic the right, privilege, and authority to Construct,
Operate, Maintain and Improve its existing 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. 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 Olympic'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 Olympic.
2.2. Non-exclusive Franchise. This Franchise is granted upon the express
condition that it will not in any manner prevent the City from granting other
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franchises in, under, on, across, over, through, along or below the Franchise
Area. This and other franchises will, in no way, prevent or prohibit the City
from using any of its Rights-of-Way, 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.- Grant of Authoritv Limited'
3.1. Limited Authorization. The authority granted by this Franchise is a
limited authorization to occupy and use the Franchise Area' Olympic is
authorized to place its Facilities in the Franchise Area only consistent with
this Franchise, the City of Kent Zoning Code, the Comprehensive Plan, the
Kent Design and Construction Standards and the Kent Municipal Code
(collectively the "Codes"). Nothing within this Franchise grants or conveys
any right, title, or interest in the Franchise Area or any other Rights-of-Way
to Olympic other than for the transportation and handling of any Petroleum
or petroleum Products, within the existing Pipeline Corridor passing through
the Franchise Area. None of the rights granted by this Franchise affects the
City's jurisdiction over its property, streets, or Rights-of-Way'
3.2. Amendment Required. The limited rights and privileges granted
under this Franchise do not convey any right to Olympic to install any new
pipeline(s) or Facilities that change the basic nature, size, or location of the
Facilities without an amendment to this Franchise'
3,3. Acknowledgement. If Olympic becomes aware that a provision of this
Franchise may be unlawful or invalid under applicable federal or state law,
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it may not use such potential invalidity to unilaterally ignore or avoid such
provision. Instead, Olympic 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. If the parties cannot
agree, this provision does not constitute a waiver of any rights under federal
or state law, including any claim that the provision is pre-empted by
applicable federal or state law.
SECTION 4.- Franchise Term.
4.1. Term. This Franchise shall have a term of ten (10) years from its
Effective Date. Within one year of the end of the ten (10)-year term, either
party may request an extension for an additional five (S)-year term.
4.2. Ye ar-to-Yea r Extension. If the parties fail to formally renew the
Franchise prior to the expiration of the term, the City may extend this
Franchise on a year-to-year basis (or such term as the parties may mutually
agree) until the City grants a renewed Franchise'
4.3. All Extensions are Discretionarv. Extensions under this Section 4 will
not be automatic and must be granted in writing by the City.
SECTION 5,- Assignment and Transfer of Franchise
5.1. Citv Council Approval Required. Olympic may not sell, assign,
transfer, lease, or dispose of this Franchise, either in whole or in part, and
Olympic may not pass title or permit it to vest, either legally or equitably, in
any person or entity without the passage of an ordinance or resolution' The
City's consent will not be unreasonably withheld. Additionally, the City's
consent does not waive any rights of the City to subsequently enforce non-
compliance issues relating to this Franchise that existed at or before the
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time of the City's consent. This provision shall not apply to any sale or
transfer of Olympic's stock by any of Olympic's shareholders.
5.2. Acceptance. If the City consents, then Olympic will, 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) will agree to accept and be bound by all of the provisions of
this Franchise.
SECTION 6.- Compliance with Laws and Standards. Olympic shall
comply with all valid and applicable Laws and/or standards, as they exist or
may be amended, whether or not specifically mentioned in this Franchise.
SECTION 7.- Construction on or within the Franchise Area.
7.L. Permits required. Except in the event of an Emergency, Olympic shall
first obtain all required permits from the City to perform Construction,
Improvements or Maintenance on Olympic's Facilities within the Franchise
Area. Olympic's permit application shall contain detailed plans and
specifications ("Plans") showing the position, depth and location of all such
Facilities in relation to City Rights-of-Way, Public Property, Public Ways, and
Other Ways, or other City property, and specifying 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. Such work will only
commence upon the issuance of applicable permits, and payment of the
associated fees, which permits will not be unreasonably withheld or delayed
after submission of a complete application, Once a permit is issued, except
in the event of an Emergency, Olympic will provide the City with at least
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seventy-two (72) hours written notice prior to any Construction or
Maintenance on Olympic Facilities within the Franchise Area.
7.2. Waiver of Permit for Emergency. In the event of an Emergency
requiring immediate action by Olympic for the protection of the pipeline(s)
or Facilities, or preservation or protection of Public Property, the
environment or the property, life, health or safety of any individual, Olympic
may take action immediately to correct the dangerous condition pursuant to
Section 11 without first obtaining any required permit so long as: (1)
Olympic notifies the Puget Sound Regional Fire Authority of the Emergency,
including the nature, location and extent of the Emergency through the
City's designated dispatch system (i,e,, 911), including any additional
information required by the City's or Olympic's emergency response plans
or Emergency Management Laws; and (2) Olympic informs the City's
designated 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 next business day; and (3) such permit is obtained by Olympic as soon
as practicable.
7.3. Construction Guarantee. Upon acceptance of this Franchise by
Olympic, Olympic shall post a bond in the amount of twenty-five thousand
dollars (925,000) that shall remain in effect for the term of this Franchise
and shall ensure the faithful performance of Olympic's obligations under the
Franchise, including, but not limited to, payment by Olympic of any
penalties, claims, liens, or fees due to the City that arise by reason of the
operation, Construction, or Maintenance of the Facilities within the Franchise
Area ("Franchise Bond"), Olympic shall pay all premiums or other costs
associated with maintaining the Franchise Bond. Additionally, if the
Franchise Bond is determined by the City to be inadequate to ensure
Olympic's performance or the project, Olympic shall post any additional
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bonds the City requires to guarantee performance by Olympic in accordance
with the conditions of any permits and/or the requirements of this Franchise.
7.4. Workmanshio. All work performed by Olympic or upon Olympic's
direction or on Olympic's behalf shall be accomplished in a safe and
workmanlike manner and in accordance with the plans and approved permit.
Olympic's activities will be conducted in such a manner as to avoid damage
or interference with other utilities, drains or other structures, and to not
unreasonably interfere with public travel, park uses or other municipal uses,
and the free use of adjoining property so as to provide safety for persons
and property. Olympic's Construction or Maintenance will be in compliance
with all valid and applicable Laws and regulations and specifications of
governmental agencies with jurisdiction'
7.5. Line Markers. Olympic will place and Maintain line markers pursuant
to federal regulations within and along the Pipeline Corridor. Additionally,
Olympic agrees to continue its voluntary practice of placing continuous
markers underground, when and where appropriate, indicating the pipeline's
location each time Olympic 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.
7.6. Locator Service, Olympic will remain a member of the State of
Washington One-Number locator service (Chapter L9.t22 RCW)' or
approved equivalent, and will comply with all such applicable rules and
regulations.
7.7. Avoiding Interference by Olympic's Facilities.
7.7.L Payment of Additional Costs. Should the City be able to
objectively demonstrate that it has incurred or will incur incremental costs
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in Public Improvements necessary to avoid damaging Olympic's Facilities
when constructing streets, water and sewer lines, and other City-owned
underground utilities, Olympic shall pay to the City the full amount of such
incremental costs. The City will invoice Olympic for these costs, and Olympic
shall pay the invoice within thirty (30) days of the invoice'
7.7.2 Free Passao e of Traffic.Olympic's Facilities shall be located
and maintained within the Franchise Area to prevent interference with the
free passage of pedestrian and/or vehicle traffic, or with the reasonable
ingress or egress to the properties abutting the Franchise Area as they exist
at the time of installation, Maintenance and/or improvement of the Facilities.
7.8. Open Cut of the Right-of-Way Restrictions. If Olympic applies for a
permit within the Franchise Area, Olympic will not open cut the Right-of-
Way affected by the permit application if the City has completed an asphalt
overlay on such Right-of-Way during a five (5)-year period immediately prior
to the date of a permit application or if such Right-of-Way has a City
pavement rating of 70 or higher, unless required by an Emergency or federal
or state rule or order or otherwise approved by the City' If any such Right-
of-Way is open cut, whether in an Emergency or otherwise, Olympic will
install or cause to install a new asphalt overlay in accordance with City
Design and Construction Standards or other specifications for a minimum of
one hundred fifty (150) feet in length in both directions from the open cut
at Olympic's sole expense. Olympic may request that the City install the new
asphalt overlay and invoice Olympic for all reasonable costs incurred by the
City, but the City is not required to do so. Olympic or its agent will obtain
any necessary permits pursuant to this Section 7 for any asphalt overlays
required by this Section,
7.9. Coordination of Work. The parties shall make reasonable efforts to
coordinate any work that either party may undertake within the Franchise
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Area to promote the orderly and expeditious performance and completion of
such work. At a minimum, such efforts shall include reasonable and diligent
efforts to keep the other party and other utilities within the Franchise Area
informed of Olympic's intent to undertake work. The parties shall make
reasonable efforts to minimize any delay or hindrance to any Construction
work undertaken by themselves or utilities within the Franchise Area.
7.LO. Inspection. Olympic shall regularly inspect the surface conditions on
or adjacent to the Pipeline Corridor, as required by applicable state and
federal regulations.
SECTION 8. - Restoration after Construction
8.1. Repair of Damage and Restoration. Olympic shall repair any damage
to the Franchise Area, and the property of any third party, after installation,
Construction, relocation, Maintenance or repair of its Facilities or after
abandonment approved pursuant to Section 9, within thirty (30) days
following the date of any of these activities and at Olympic's sole cost and
expense. Olympic shall restore the Franchise Area and the surface of any
Rights-of-Way to the same or better condition as it was immediately prior
to any installation, Construction, relocation, Maintenance, or repair by
Olympic. Olympic shall not be responsible for any changes to the Franchise
Area not caused by Olympic or anyone doing work for Olympic.
8.2. Comoletion of Restoration Work.
8.2.1 Olympic agrees to complete all restoration work to the
Franchise Area or other affected area at its sole costs and expense and
according to the time and terms specified in the construction permit issued
by the City. Olympic also agrees to repair any damage caused by work to
the Franchise Area within fourteen (14) days unless otherwise approved by
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the Director. All work by Olympic pursuant to this Franchise shall be
performed in accordance with applicable City standards and warranted for
a period of two (2) years and for undiscovered defects as is standard and
customary for this type of work,
8.2.2 If conditions (e.9., weather) make the complete restoration
required under this Section B impracticable, Olympic shall temporarily
restore the affected Right-of-Way or property at its sole cost and expense'
Olympic shall promptly undertake and complete the required permanent
restoration as soon as conditions no longer make such permanent
restoration i m practicable.
8,3. Survev Monuments. No survey monument may be removed (or
replaced) without a professional land surveyor obtaining a permit in advance
from the Washington State Department of Natural Resources and submitting
a copy of the approved permit to the City. Olympic shall restore all concrete
encased monuments that will be disturbed or displaced by such work to City
standards and specifications. The Public Works Director or designee shall
have final approval of the condition of the Rights-of-Way after repair or
restoration by Olympic.
8.4. Reimbursement of Citv's Costs to Restore. If Olympic does not repair
the Franchise Area or an improvement in or to a Right-of-Way within the
time prescribed by this Section 8, the City may repair the damage and shall
be reimbursed its actual cost within sixty (60) days of submitting an
itemized invoice to Olympic. The City may also bill Olympic for any expenses
associated with the design and inspection of such restoration work.
8.5. Survival. The provisions of this Section 8 shall survive the expiration
or termination of this Franchise so long as Olympic continues to have
Facilities in the Franchise Area and has not completed all restoration to the
City's standards.
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SECTION 9,- Abandonment or Removal of Facilities.
9.1. Notification. Olympic will notify the City of any abandoned Facilities
or permanent cessation of use of any of its Facilities within sixty (60) days
after such abandonment or cessation of use.
9.2. Removal. In the event of abandonment or Olympic's permanent
cessation of use of its Facilities, or any portion thereof within the Franchise
Area, Olympic will, within one hundred and eighty (180) days after the
abandonment or permanent cessation of use, at Olympic's sole cost and
expense, either remove the Facilities or alternatively, with the consent of
the City, which consent will not be unreasonably withheld, Olympic may
secure the Facilities in such a manner as to cause them 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 will be removed. Olympic
will obtain any necessary permits pursuant to Section 7 for any securement
or removal of Facilities under this Section.
9.3. Restoration after Removal or Securement. In the event of the
removal or securement of all or a portion of the Facilities, Olympic will
restore the Franchise Area as nearly as possible to a condition that existed
prior to removal or securement of Olympic's Facilities. This restoration work
will be done at Olympic's sole cost and expense and to the City's reasonable
satisfaction. If Olympic 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 Olympic, remove the Facilities, restore
the Franchise Area or take such other action as is reasonably necessary at
Olympic's sole expense and invoice Olympic for all reasonable costs incurred
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by the City which costs shall be paid within thirty (30) days of invoice, This
remedy will not be exclusive and will not prevent the City from seeking a
judicial order directing that the Facilities be removed or properly abandoned
in place or from seeking any other appropriate remedy.
9.4. Obligations. If Olympic abandons the Facilities in place, it will retain
the obligation to remove, alter, relocate or re-secure such Facilities in the
future at Olympic's sole expense if it is reasonably determined, in the sole
discretion of the City, that removal, alteration, relocation or re-securing the
Facilities is necessary or advisable for the health, safety, necessity or
convenience of the public. If Olympic fails to remove, alter, relocate or re-
secure such Facilities in the future, the City ffidy, after reasonable notice to
Olympic, cause the Facilities to be removed, the premises to be restored or
take any other action as is reasonably necessary at Olympic's sole expense
and invoice Olympic for all reasonable costs incurred by the City which costs
shall be paid within thirty (30) days of invoice. If the City causes any work
to be done at the Facilities, it will use a contractor or personnel that are
qualified under Olympic's required Operator Qualification Program.
9,5. Survival. The provisions of this Section 9 shall survive the expiration
or termination of this Franchise so long as Olympic continues to have
Facilities in the Franchise Area and has not completed all restoration to the
City's standards,
SECTION 70, - Excavation Management.
10,1. Compliance with Laws. Olympic and the City will comply with
applicable federal, state and local requirements regarding excavation
management, including the State of Washington One-number locater service
(chapter L9.L22 RCW). Olympic will maintain a written program to prevent
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damage to its Facilities from excavation activities, as required by applicable
state and federal guidelines.
10.2. Excavator Notice to Olympic. Consistent with RCW L9.L22'O33,
Notice of excavation to pipeline companies, the City will use reasonable
efforts to inform all excavators that subject to a City grading or Right-of-
Way permit working within 100 feet of Olympic's Facilities of their
responsibility to notify Olympic at least forty-eight (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 (chapter 19.122 RCW)'
The City shall not be liable for any damage, loss or injury caused by a third
party that the City failed to notify, or a third party's failure to notify Olympic
of any work near or affecting Olympic's Facilities'
10.3. Inspection and Testing. Should Olympic become aware that a third
party conducts any excavation or other significant work that may affect the
Facilities, Olympic shall conduct such inspections and/or testing as required
by applicable federal or state law to determine that no damage was done to
the Facilities.
SECTION 77. - Leaks Spills and Emergency Response.
11.1. Emergencv Response Plan
11.1,1 Olympic shall maintain and provide to the City an
Emergency Response Plan that is in compliance with the applicable federal
and state Pipeline Operation and Safety Laws and Emergency Management
Laws or state and federal agencies with jurisdiction. Upon written request
by either party, the parties agree to meet periodically to review the
Emergency Response Plan and procedures. Olympic shall make available for
inspection to the City upon request its current manual for responding to
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emergencies involving its pipeline and Facilities. The manual is based on the
Northwest Area Contingency Plan, as approved by the Washington State
department of Ecology (DOE) and the federal Pipeline and Hazardous
Materia ls Safety Ad ministration.
IL.L.2 Olympic's Emergency Response Plan and procedures will
designate Olympic's responsible local emergency officials and a direct 24-
hour emergency contact number for the control center operator. The parties
will cooperate throughout the term of this Franchise to keep emergency
contact information up to date and accurate. Olympic will, after being
notified of an Emergency anywhere within the City (even if the Emergency
occurs outside of the Franchise Area), cooperate with the City and make
every effort to respond as soon as possible to protect public property and
the public's health, safety, and welfare.
IL.2. Emergencv Response.
LL.2.1 Olympic will cooperate with the city in planning for and
responding to Emergencies involving or affecting Olympic's Facilities
requiring protection of property, public health and safety' Olympic shall at
all times have available, within King County, sufficient emergency response
personnel, equipment and materials to immediately and fully respond to any
spill, leak, rupture or other release of Petroleum Products or Hazardous
Substances from Olympic's pipeline(s) or Facilities or that Olympic will 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 Olympic's pipeline(s) 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
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that results from the sole negligence or willful misconduct of the City or its
contractors.
LL.2.2 In the event of an Emergency, Olympic will (1) notify the
Puget Sound Regional Fire Authority of the Emergency, including the nature,
location and extent of the Emergency through the City's designated dispatch
system (i.e., 911), including any additional information required by the
City's or Olympic's Emergency Response Plans or Emergency Management
Laws; (2) investigate, respond to and report any leaks, spills, ruptures and
other Emergencies affecting the City as required by applicable federal or
state regulations and Emergency Response Plans; and (3) provide to the
City a copy of any reports related to the investigation and response to any
such Emergency or resulting corrective actions which are required by
applicable federal or state regulations or directed by governmental
authorities with jurisdiction. Olympic will notify the Puget Sound Regional
Fire Authority Office of Emergency Management of the Emergency at (253)
856-4440 as soon as is practicable.
11.3, Recoverv of Costs. Olympic shall be solely responsible for all costs
incurred by the City in responding to any contamination, leak, rupture, or
spill from Olympic's Facilities, including, but not limited to, detection and
removal of any contaminants from air, earth or Water, and all actual
remediation costs. This Section shall not limit Olympic's rights or causes of
action against any third party who may be responsible for a leak,
contamination, spill or other release of hazardous liquid from Olympic's
Facilities, including third party insurers,
LL.4. Investioation Required. In the event of an uncontained leak, spill or
rupture from Olympic's Facilities affecting the Franchise Area of five (5)
gallons or more, Olympic will notify the City, and will notify the City of its
response. In the event the leak is investigated by federal or state regulators,
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Olympic will share the investigation results with the City within sixty (60)
days of the investigation's completion.
SECTION 72, - Required Relocation of Facilities.
t2.L Relocation Requirement. Olympic agrees to protect, support,
relocate, or remove from any Rights-of-Way any of its Facilities within a
reasonable time when reasonably required by the City by reason of traffic
conditions, public safety, dedications of new Rights-of-Way, the
establishment and improvement of new Rights-of-Way, widening or
improvement of existing Rights-of-Way or both, street vacations, freeway
construction, change or establishment of street grade, or the construction
of any Public Improvement or structure by any governmental agency acting
in a governmental capacity or as otherwise necessary for the operations of
the City or other governmental entity. Collectively, such matters are referred
to within this Franchise with the term "Public Improvement."
t2.2. Notice to Relocate. The City will provide Olympic reasonable written
notice of any Public Improvement that requires changes to or the relocation
of Olympic's Facilities. The City will endeavor, where practical, to provide
Olympic at least 365 days prior written notice, or such additional time as
may be reasonably required, of such Public Improvement. However, nothing
in this Section will be construed as to relieve Olympic of its duty and
obligation to relocate its Facilities to accommodate any Public Improvement
undertaken by the City after the City has provided written notice of the
requirement to relocate.
12.3. Locate. Upon written request of the City, or a third party performing
work in the Franchise Area, and in order to facilitate the design of City street
and Right-of-Way Improvements or other Public Improvement, Olympic
agrees, at its sole cost and expense, to locate, and if determined necessary
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by the City, to excavate and expose its Facilities for inspection so that the
Facilities' location may be taken into account in the Public Improvement
design. The decision as to whether any Facilities need to be relocated in
order to accommodate the Public Improvement shall be made by the City
upon review of the location and Construction of Olympic's Facilities. The City
shall provide Olympic at least thirty (30) days' written notice prior to any
excavation or exposure of Facilities. Olympic shall be responsible for any
delays due to failure to locate its Facilities when requested, except that
Olympic shall not be responsible for delays or damages due to circumstances
beyond the control of the OlYmPic.
L2.4. Provision of Plans by Citv. The City will further provide Olympic with
copies of pertinent portions of the final plans and specifications for such
Public Improvement, so that Olympic may make the required changes to or
relocate its Facilities to accommodate such Public Improvement, Olympic will
cooperate with the City, upon request, by assisting the City in locating and
marking the Facilities during the design phase, including providing the
horizontal and vertical location of Olympic's Facilities within the Franchise
Area related to the proposed Public Improvement by field markings or
Facilities location markings on the City's design drawings.
12.5. Consideration of Alternatives. Olympic ffidY, after receipt of written
notice requiring changes to or relocation of its Facilities under Section L2.2,
submit to the City within ninety (90) days, written alternatives to such
relocation. The City will evaluate such alternatives and advise Olympic in
writing if one or more of the alternatives are suitable to accommodate the
Public Improvement that would otherwise necessitate changes to or
relocation of the Facilities. If so requested by the City, Olympic will submit
additional information to assist the City in making such evaluation including
actual field verification of the location(s) of Olympic's underground Facilities
within the Public Improvement area by excavating (e.9., Pot holing) and
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restoring the premises to the same condition, at no expense to the City. The
City will give each alternative proposed by Olympic full and fair consideration
but retains sole discretion to decide whether to utilize its original plan or an
alternative proposed by Olympic. If it is determined and agreed upon by the
City and Olympic that it is in the mutual best interest of both the City and
Olympic to redesign a proposed Public Improvement rather than have
Olympic relocate its Facilities, Olympic will be responsible for the reasonable
incremental costs of redesigning the Public Improvement, including, but not
limited to, the increased costs of design, construction or Right-of-Way
acquisition to avoid relocation of Olympic's Facilities. Any agreed upon
alternative arrangements shall not unduly delay the Public Improvement'
L2.6. Relocation Route. The City will work cooperatively with Olympic in
determining a viable and practical route within which Olympic may relocate
its Facilities, 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 be reasonable and consistent with applicable federal and state
requirements; however, nothing in this section will be construed as to limit
the City's police power, land use authority, franchise authority, or the City's
authority to regulate Olympic's use of the Franchise Area'
L2.7. Time for Compjetion. Olympic understands that the City desires all
relocation work to be completed prior to requesting bids for the Public
Improvement and that relocation of Olympic's Facilities must be completed
prior to the commencement of the Public Improvement to avoid delays in
the project schedule and related cost increases. Upon receipt of the City's
reasonable notice and plans and specifications per Sections L2.2 and L2.4,
Olympic will take all necessary, prudent and prompt measures to complete
relocation of such Facilities at least 180 days prior to the scheduled
commencement of the Public Improvement. The parties may mutually agree
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in writing to such other time for completion of the relocation if the City has
provided less than one (1) year's notice or other unique circumstances exist
as long as it is reasonably prior to the scheduled commencement of the
Public Improvement. Olympic agrees that it will be responsible for any
additional costs from delays to the Public Improvement to the extent such
additional costs are caused by delays in Olympic's completion of the
relocation of its Facilities, unless such delays by Olympic are beyond its
reasonable control.
12.8. Contractor Delay Claims. Provided Olympic has been provided
reasonable and timely notice as provided in Section L2'2, Olympic shall be
solely responsible for the out-of-pocket costs incurred by the City for delays
in a Public Improvement to the extent the delay is caused by or arises out
of Olympic's failure to comply with the final schedule for the relocation
(other than as a result of a Force Majeure Event or causes or conditions
caused by the acts or omissions of the City or any third party unrelated to
Olympic; Olympic vendors and contractors shall not be considered unrelated
third parties). Such out-of-pocket costs may include, but are not limited to,
payment to the City's contractors and/or consultants for increased costs and
associated court costs, interest, and reasonable attorneys' fees incurred by
the City to the extent directly attributable to such Olympic's caused delay
in the Public Improvement,
L2.9. Subsequent Relocation. If the City requires Olympic to relocate any
portion of its Facilities that have already been relocated as required by the
City under this section within five (5) years of the original relocation, the
City will bear the entire cost of the subsequent relocation. However, this
Section 12,9 requirement does not apply to relocations required by the City
for emergencies or threats to public health, life, and safety.
12.10.Private Development. Olympic will not be required to relocate its
Facilities at its expense for the benefit of private developers or third-party
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projects. However, if the City reasonably determines and notifies Olympic
that the primary purpose for requiring such changes to or relocation of
Olympic's Facilities by a third party is to cause or facilitate the construction
of a Public Improvement, or other similar plan, then Olympic will change or
otherwise relocate its Facilities in accordance with this Section t2 at
Olympic's sole cost, expense, and risk.
L2.LL Indemnification. Olympic will indemnify, hold harmless, and pay the
costs of defending the City, in accordance with the provisions of Section 19'
12.12.Survival. The provisions of this Section 12 shall survive the expiration
or termination of this Franchise during such time as Olympic continues to
have Facilities in the Rights-of-Way,
SECTION 73, - Violations" Remedies and Termination
13.1, Reservation of Rights. Olympic shall comply with the terms of this
Franchise at all times.
13,1.1 The city reserves the right to apply any of the following
remedies, alone or in combination, if Olympic violates any material provision
of this Franchise. The remedies provided for in this Franchise are cumulative
and not exclusive; the exercise of one remedy will not prevent the exercise
of another or any rights of the City at law or equity.
13.t.2 Either party's failure to exercise a particular remedy at
any time shall not waive the City's right to terminate, assess penalties, or
assert any equitable or legal remedy for any future breach or default by
Olympic.
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L3.2. Termination. The City may terminate this Franchise if Olympic
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) days of receipt of
written notice thereof, or, if not reasonably curable within thirty (30) days,
within such other reasonable period of time as the parties may agree upon.
13.3. Disoute olution. Either party may invoke the Dispute Resolution
clause contained in Section L4 of this Franchise as it deems necessary with
regard to termination.
L3.4. Olympic's Liabilitv and Obligation.
t3.4.1 If Olympic's right to Operate its Facilities within the
Franchise Area is ultimately terminated, Olympic will comply with the terms
of this Franchise regarding removal or abandonment of the Facilities and
restoration of the premises, and with all directives of applicable federal,
state, or local agencies with jurisdiction.
t3.4.2 Termination of this Franchise shall not release Olympic
from any liability or obligation with respect to any matter occurring prior to
such termination.
13.5, Injunctive Relief. The parties acknowledge that the covenants set
forth in this Franchise are essential and that they may not have an adequate
remedy at law if the other party violates a covenant. Therefore, in addition
to any other rights they may have, the parties shall have the right to obtain
in any court of competent jurisdiction, injunctive relief to restrain any breach
or threatened breach, or to specifically enforce any of the Franchise
covenants should the other party fail to perform them'
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SECTION 74, - Dispute Resolution.
L4.L. Meeting of Representatives. In the event of a dispute between the
City and Olympic arising by reason of this Franchise, the dispute will first be
referred to the representatives designated by the City and Olympic to have
oversight over the administration of this Franchise. The representatives will
meet within thirty (30) days of either party's request for a meeting, and the
parties will make a good faith effort to attempt to achieve a resolution of the
dispute,
L4.2. Mediation. If the parties are unable to resolve the dispute under the
procedure set forth in Section t4.t, then the parties agree that the matter
will be referred to mediation. The parties will endeavor to select a mediator
acceptable to both sides. If the parties cannot reach agreement, then each
party will secure the services of a mediator at its own expense, who will in
turn work together to mutually agree upon a third mediator to assist the
parties in resolving their differences, whose expense will be shared equally
by the parties. Any other reasonable expenses incidental to mediation will
be borne equally by the parties.
74.3. Judicial medies. If either party is dissatisfied with the outcome of
the mediation, that party may then pursue any available judicial remedies
Each party will be responsible for its own costs and attorneys'fees.
t4.4. Operation D urino Disoute esolution. Subject to Laws, Olympic will
be permitted to continuously Operate its Facilities during dispute resolution
SECTION 75. - Indemnification
15.1. General Indemnification. Except for environmental matters, which
are covered by a separate indemnification in Section I5.2, Olympic will
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indemnify, defend and hold harmless the City, its 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
Olympic's Facilities, or from the existence of Olympic'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 to
the extent it is caused by the City's non-compliance with Section 10'2, (One-
number locator service requirements). If any action or proceeding is brought
against the City by reason of the pipeline or its appurtenant facilities,
Olympic will defend the City at Olympic's complete expense' provided that,
for uninsured actions or proceedings, defense attorneys will be approved by
the City, which approval will not be unreasonably withheld. The City agrees
to fully cooperate with Olympic in providing access to witnesses, documents,
and information related to the City's defense.
L5.2. Environmental Indemnification. Olympic will indemnify, defend and
hold harmless the City, its agents, officers or employees, from and against
any and all liability, loss, damage, expense, actions and claims 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)
Olympic's violation of any Environmental or Hazardous Substance laws
applicable to the Facilities; or (b) from any release of a Hazardous Substance
on or from the Facilities expect to the extent it is caused by City's
noncompliance with Section LO.2 (One-number locator service
requirements), 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
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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
or Hazardous Substance laws; and (e) liability for personal injury, property
damage, or economic loss arising under any statutory or common-law
theory,
15.3. Procedures and Defense. If a claim or action arises, the City or any
other indemnified party shall promptly notify Olympic of such claim or action
and tender the defense of the claim or action to Olympic, which defense
shall be at Olympic's expense. The City's failure to so notify and request
indemnification shall not relieve Olympic of any liability that Olympic might
have, except to the extent that such failure prejudice Olympic's ability to
defend such claim or suit. The City may participate in the defense of a claim,
but if Olympic provides a defense at Olympic's expense then Olympic shall
not be liable for any attorneys'fees, expenses, or other costs the City may
incur if it chooses to participate in the defense of a claim, unless and until
separate representation as described in Section 15.5 is required. In that
event, the provisions of Section 15.5 shall govern Olympic's responsibility
for City's attorney's fees, expenses, or other costs. Olympic may not agree
to any settlement of claims affecting the City without the City's consent,
such consent not to be unreasonable withheld or delayed'
t5.4. Avoidance, Inspection or acceptance by the City of any work
performed by Olympic at the time of completion of Construction shall not
be grounds for avoidance by Olympic of any of its obligations under this
Section 15. The fact that Olympic carries out any activities under this
Franchise through independent contractors shall not constitute an avoidance
of or defense to Olympic's duty of defense and indemnification under this
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15.5. Expenses. If separate representation to fully protect the interests of
both parties is or becomes necessary, such as a conflict of interest between
the City and the counsel selected by Olympic to represent the City, Olympic
shall pay, from the date such separate representation is required forward,
all reasonable expenses incurred by the City in defending itself with regard
to any action, suit, or proceeding subject to indemnification by Olympic.
Provided, however, if such separate representation is or becomes
necessary, and the City desires to hire counsel or any other outside experts
or consultants and desires Olympic to pay those expenses, then the City
shall be required to obtain Olympic's consent to the engagement of such
COunsel, experts, or consultants, Such Consent not to be unreasonably
withheld. The City's expenses shall include all reasonable out-of-pocket
costs and expenses, such as consultants' fees and court costs, but shall not
include outside attorneys'fees for services that are unnecessarily
duplicative of services provided the City by Olympic, except in the event of
a conflict of interest where such duplication may be required. Each party
agrees to cooperate and to cause its employees and agents to cooperate
with the other party in the defense of any claim or action.
15.6. RCW 4.24.115. The parties acknowledge that this Franchise is
subject to RCW 4.24.115. Accordingly, in the event of liability for damages
arising out of bodily injury to persons or damages to property caused by or
resulting from the concurrent negligence of Olympic and the City, its
officers, officials, employees, and volunteers, Olympic's liability shall be only
to the extent of Olympic's negligence. It is further specifically and expressly
understood that the indemnification provided constitutes Olympic's waiver
of immunity under Title 51 RCW, solely for the purposes of this
indemnification. This waiver has been mutually negotiated by the parties.
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L5.7. Survival, The provisions of this Section 15 shall survive the
expiration, revocation, or termination of this Franchise.
SECTION 76. - Insurance.
16.1. Insurance Requirements. Olympic will procure and maintain for the
duration of the Franchise, insurance; or upon City's written approval based
on satisfactory evidence of financial capacity and stability, Olympic may
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 Olympic, its agents,
representatives or employees, Olympic will 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, excluding Workers' Compensation and Employer's
Liability, and to the extent of Olympic's obligations hereunder, to the City
upon Olympic's execution of this Franchise, and such insurance certificate
will evidence the following minimum coverages. Olympic may use a
combination of primary and excess coverage to achieve the required limits:
A. Commercial general liability insurance including coverage for
premises - operations, contractual liability, 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 any one accident; and in the aggregate for general liability.
B. Automobile liability for owned, non-owned and hired vehicles
with a limit of $2,000,000 for each person and $2,000,000 for each accident'
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C. If applicable, Worker's compensation within statutory limits
and employer's liability insurance with limits of not less than $2,000,000'
D. Environmental pollution liability with a limit not less than
$50,000,000 for each occurrence, covering liability from sudden or
accidental occurrences to the extent such coverage is reasonably available
in the marketplace, and if not, a substantially equivalent coverage for similar
occurrences
E. Any and all above policy limits may be met through a
combination of primary, eXceSS, or umbrella coverage at Olympic's option.
L6.2. Deductibles, Any deductibles or self-insured retention will be the sole
responsibility of Olympic. The insurance certificate required by this Section
16 will contain a clause stating that coverage will 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. Primary Insurance. To the extent of Olympic's obligations in this
Franchise, Olympic's insurance will 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 will be in excess of Olympic's insurance
and will not contribute with it.
16.4. Cancellation Requirements. In addition to the coverage requirements
set forth in this Section, the certificate of insurance will provide that:
"The above described policies will not be canceled before the
expiration date thereof, without Olympic aiving thirty (30) days
written notice to the certificate holder."
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16.5. Certificates of Insurance. Olympic will 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 will 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. Continuation of Coverage. If coverage is purchased on a "claims
made" basis, then Olympic will warrant continuation of coverage, either
through policy renewals or the purchase of an extended discovery period,
for not less than three (3) years from the date of termination of this
FranChise Or conversiOn frOm a "claims made" coverage form tO an
"occurrence" coverage form.
L6.7. Survival. The indemnity and insurance provisions within Sections 15
and 16 will survive the termination of this Franchise and will continue for as
long as Olympic's Facilities will 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 77. - Annual Franchise Fee.
L7.1. Franchise Fee. The current Franchise fee shall be $28,000 per annum
for use of the Franchise Area, The Franchise fee for 2O2L-2022 is $28,420.00
($28,000.00 multiplied by L Vzo/o), which is intended to cover the City's
reasonable costs related to the general administration of the Franchise and
its terms and conditions.
17.2. Annual Increase. Beginning with year two of the Franchise term and
each year thereafter, the annual fee shall be increased by the most recently
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published Consumer Price Index All Urban Consumers (CPI-U) for the
Seattle-Tacoma-Bremerton Area, or at a rate of one and one-half percent
(L 1/zo/o), whichever is greater. Each increase will become effective on the
anniversary date of this Franchise each year.
L7.3. Payment Due. Each annual payment will cover the next twelve (12)
month period and will be paid not later than the anniversary of the Effective
Date of this Franchise. Interest will accrue on any late payment at the rate
of twelve percent (L2Vo) per annum, Such interest will be in addition to any
applicable penalties for late payment. Any partial payment will first be
applied to any penalties, then interest, then to principal.
L7.4. Additional Administrative Costs. The Franchise fee set forth in Section
17.1 does not include, and Olympic agrees that it is separately responsible
for, other reasonable costs or charges customarily charged by the City to
other businesses or persons, such as customary permitting fees. The annual
Franchise fee does not include any generally applicable taxes that the City
may legally levy, Olympic shall pay the Franchise renewal application review
fee, pursuant to Kent City Code Section 6.15.070, as it exists, and as
amended, Olympic will also bear the cost of publication of this Ordinance.
SECTION 78. - Olvmpic Accepts Franchise Area "As Is".
Olympic accepts the Franchise Area in an "as iS" condition. Olympic 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 Olympic's Facilities or the Facilities themselves or possible
hazards or dangers arising from other uses or users of the Franchise Area
including, the City, the general public or other utilities. As between the City
and Olympic, Olympic will remain solely and separately liable for the
Olympic Pipe Line ComPanY LLC
Franchise Agreement
33
function, inspection, testing, Maintenance, replacement or repair of the
Facilities or other activities permitted under this Franchise.
SECTION 79. - Information Sharing.
19.1. Information Request. Upon request Olympic shall make available for
inspection, at no cost to the City, any information reasonably requested by
the City to coordinate its function with Olympic's activities and fulfill any
municipal functions under state law. The required information may include,
but is not limited to, any installation inventory, mapS, plans, a pipeline map
depicting the location of Olympic's pipeline, and as-built drawings of
Olympic's Facilities within the City. Unless otherwise specified by the City,
Olympic may satisfy this requirement by making available to the City GIS
data (including GPS coordinates) depicting the location of the Facilities
within the Franchise Area. Upon request, Olympic shall make available for
review at its offices its Damage Prevention Program and Procedures.
Olympic shall warrant the accuracy of all information provided to the City'
To the extent permitted by applicable law, and as otherwise provided herein,
the City will keep the pipeline map and GIS data confidential and protected
from public disclosure.
Lg.Z. Field Verification. It is understood and agreed by the parties that the
precise location and depth of Olympic's pipeline shall be field verified if exact
alignment is required for a construction project in the vicinity of the pipeline
by using the One-number location system. It is further understood that the
pipeline map and GIS data, while reasonable guides to the location of the
line, are no substitute for direct contact with an appropriate employee or
representative of Olympic whenever construction is contemplated or
planned.
Olympic Pipe Line ComPanY LLC
Franchise Agreement
34
19.3. City's Development Plans. The City's long-range construction or
development plans are available for review on the City's website:
www,kentwa.gov. The City shall make available upon request copies of long-
range plans to Olympic in a physical media format. Construction plans for
projects which may affect the pipeline may be submitted for review and
comment to Olympic when applicable.
L9.4. Inspection Results. Olympic agrees with applicable criteria relating to
pipeline integrity management developed by relevant state or federal
regulatory authorities, Upon request, Olympic shall make available for
review at its offices a summary of necessary repairs identified as a result of
any in-line inspection of pipeline segments within the Franchise Area along
with the indicated mitigation efforts and completion date of any such
mitigation.
SECTION 20. - Notice
ZO.t. Notice and Contact Information. Any notice or information required
or permitted to be given to the parties under this Franchise shall be sent to
the following addresses unless otherwise specified, by personal delivery,
overnight mail by a nationally recognized courier, or by U.S. certified mail,
return receipt requested and shall be effective upon receipt or refusal of
delivery:
City:
City of Kent
220 4th Avenue South
Kent, WA 98032
Office of Emergency Management
With copy to:
City Attorney
City of Kent Law DePartment
22O 4rh, Avenue S.
Kent, WA 98032
Olympic Pipe Line ComPanY LLC
Franchise Agreement
35
Olympic:
Olympic Pipe Line ComPanY LLC
Attn: President & ROW Agent
23Lg Lind Avenue SW
Renton, WA 98057
With copy to:
Doug Berry
Miller Nash Graham & Dunn LLP
Pier 70,2801 Alaskan WaY, Suite 300
Seattle, WA 98121
20.2. Representative Designated. To ensure effective cooperation, Olympic
and the City will each designate a representative responsible for day-to-day
communications between the parties.
SECTION 27. - Miscellaneous.
2L.L. Olympic's Acceptance. The City may void this Franchise Ordinance if
Olympic fails to file its unconditional written acceptance of this Franchise
within thirty (30) days from the final passage of same by the City Council.
Olympic will file its unconditional written acceptance with the City Clerk of
the City of Kent.
2L.2. No Duty by City. This Franchise creates no duty by the City or any of
its officials, employees or agents and no liability will 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. This Franchise 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
purposes. Any duty that may be deemed to be created in the City by this
Franchise shall only be a duty to the general public and not to any specific
party, group or entitY,
Olympic Pipe Line ComPanY LLC
Franchise Agreement
36
21.3. Acknowledgement. Olympic acknowledges 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
Franchise's provisions, terms, and conditions and believes that the Franchise
is compliant with applicable Laws. If in the future Olympic 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, Olympic 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'
2L.4. Severability. If a court or agency of competent jurisdiction declares
a material provision of this Franchise to be invalid, illegal or unenforceable,
the parties will 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 provisions(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 the particular provision(s). All other
provisions of the Franchise will remain in effect at all times during which
negotiations or a judicial action remains pending.
2L.5. Time of the Essence. 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.
2L.6. Force Majeure. If Olympic is prevented ordelayed in the performance
of any of its obligations under this Franchise by reason(s) beyond the
Olympic Pipe Line ComPanY LLC
Franchise Agreement
37
reasonable control of Olympic, then Olympic's performance will be excused
during the Force Majeure occurrence, except that it will make best efforts to
perform all its obligations under Section 11 at all times. Upon removal or
termination of the Force Majeure occurrence Olympic will 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. Olympic will not be excused by mere economic
hardship or by misfeasance or malfeasance of its directors, officers or
employees. The parties represent to each other that at the time of signing
this Franchise, they are able to perform as required and their performance
will not be prevented, hindered, or delayed by the current COVID-19
pandemic, dfiy existing state or national declarations of emergency, or any
current social distancing restrictions or personal protective equipment
requirements that may be required under federal, State, or local law in
response to the current Pandemic.
2L.7. Section Headings. The section headings in this Franchise are for
convenience only, and do not purport to and will not be deemed to define,
limit, or extend the scope or intent of the section to which they pertain.
2L.8. Third Parties. The parties do not create any obligation or liability, or
promise any performance to, any third party, nor have the parties created
any third party right to enforce this Franchise beyond what is provided for
by Laws. Third parties are any party other than the City and Olympic. This
Franchise shall not release or discharge any obligation or liability of any third
party to either party.
2L.9. Successors and Assigns. This Franchise and all of the terms and
provisions will be binding upon and inure to the benefit of the respective
successors and assignees of the parties.
Olympic Pipe Line ComPanY LLC
Franchise Agreement
3B
21.10.Authority to Sign, The city and olympic respectively represent that
their respective signatories are duly authorized and have full right, power,
and authority to execute this Franchise on such party's behalf.
2LLL Modification of Terms and Conditions. Notwithstanding any provisions
of this Franchise to the contrary, the parties reserve the right to alter, amend
or modify the terms and conditions of this Franchise upon written agreement
and approval of the City Council of such alteration, amendment, or
modification.
21.12.Jurisdiction and Venue. Any lawsuit or legal action brought by any
party to enforce or interpret this Franchise or any of its terms shall be in the
United States District Court for the Western District of Washington or in the
King county superior court for the State of washington at the Maleng
Regional Justice Center, Kent, Washington.
DANA RALPH, MAYOR Date Approved
ATTEST:
KIMBERLEY A. KOMOTO, CITY CLERK Date Adopted
Date Published
APPROVED AS TO FORM
ARTHUR "PAT' FITZPATRICK, CITY ATTORNEY
Olympic Pipe Line ComPanY LLC
Franchise Agreement
39
UNCONDITIONAL ACCEPTANCE BY OLYMPIC PIPE LINE COMPANY
OF ORDINANCE NO.t{'t ?
OF THE CITY OF KENT, WASHINGTON
The undersigned official of Olympic Pipe Line Company LLC, hereby accepts
Ordinance No LlLt 0?,whichwas passed by the City Council of the City
of Kent, Washington on ZoZl and is entitled
AN ORDINANCE of the City Council of the
City of Kent, Washington, granting Olympic Pipe Line
Company LLC, a Delaware limited liability company,
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 Kent.
IN TESTIMONY WHEREOF said olympic Pipe Line company LLC, has caused
this written Acceptance to be executed in iis name^bY its, undersigned
authorized signer, duly authorized on ttris lZlday of Ag{gd, 2o2L'
I
OLYMPIC PIPE LINE COMPANY LLC
By:
Print Name:
Title:
C rvtq r.-J
Olympic Pipe Line ComPanY LLC
Franchise Agreement
40
STATE OF WASHINGTON
County of King
I certify that I know or have satisfactory evidence that
said person acknowledged th
is the person who appeared before me, and
at (he/she) signed this instrument, on oath
stated that (he/she) was authorized to execute the instrument and
acknowledged it as the of Olympic PiPe Line
Company LLC to be free and voluntary acts of such party for the uses and
purposes mentioned in the instrument
SS
)
)
)
J 202LDated this day of
N P lic in an d for the
of Washington res ng at
My commission exPires
Received on behalf of the City this lbKauv ot
A n bJA,
luawuf ,20210
By:
Name:
Title:Citv Clerk
m
Olympic PiPe Line ComPanY LLC
Franchise Agreement
JOSEPH A STONE
NOTARY PUBLIC
STATE OF WASHINGTON
COMMISSION EXPIRES
AUGUST 22,2021
47
STATE OF WASHINGTON, COUNTY OF KING }
AFFIDAVIT OF PUBLICATION
PUBLIC NOTICE
Rudi Alcott, being first duly sworn on oath that he is the
Vice President of Advertising for Sound Publishing,
which publishes the
Kent Reporter
a weekly newspaper, which newspaper is a legal newspaper of general
circulation and is now and has been for more than six months prior to the date
of publication hereinafter referred to, published in the English language
continuously as a weekly newspaper in King County, Washington. The
Kent- Covington Reporter has been approved as a Legal Newspaper by order of
the Superior Court of the State of Washington for King County.
The notice in the exact form annexed was published in regular issues of
the Kent- Covington Reporter (and not in supplement form) which was regularly
distributed to its subsoibers during the below stated period. The annexed
notice, a:
Public Notice #KENe32337
was published on July 23,
The full amount of the
sum of
Rudi Alcott
Vice President, Advertising
Subscribed and sworn to me this 23"d day of July,2O2L -
Tribb ett,Notary Public for the State of Washington, Residing in
Washington
ttSTAtrS'
202r
charged for said foregoing publication is the
Fffil**
Ilfttrltl
Classified Proof
dialed the Franchise
Agreement and the fran-
chis€ will be voidable by
the CiW.
oRDlliANcE No. 44oB
- AN ORDINANCE ol
the City Gouncll of the
City of Kent, Washing-
ton, repealing Chapler
8.02 of ths Kent City
Codc entitled,'Singl6-
U6e Plastic and Canyout
Bags."
This ordinenE sfiall take
effect and be in force
thi*y days lrom and after
its passage, as provided
by law.
A copy of the compbte
text of eny ordinance will
be mail€d upon tsquest
of the City Clerk.
Kimberley A. Komoto,
Gity Clerk
Kkama!o@Ke-n$14\,sev,
253€56-5725
#932377
7t23t21
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