HomeMy WebLinkAboutORD 5788 CITY OF RENTON, WASHINGTON
ORDINANCE N0. 5788
AN ORDINANCE OF THE CITY OF RENTON, WASHINGTON, GRANTING OLYMPIC
PIPELINE COMPANY, AN INTERSTATE CORPORATION, INCORPORATED IN THE
STATE OF DELAWARE, ITS SUCCESSORS AND ASSIGNS, A NON-EXCLUSIVE
PRIVILEGE AND FRANCHISE, SUBJECT TO THE TERMS AND LIMITATIONS
PROVIDED IN THIS ORDINANCE, TO CONSTRUCT, REPAIR, REPLACE, OPERATE,
AND MAINTAIN, ITS EXISTING 20-INCH, 16-INCH AND 12.75-INCH DIAMETER
PIPELINES TOGETHER WITH EQUIPMENT AND REQUIRED APPURTENANCES
BENEATH THE RIGHTS-OF-WAY WITHIN AND THROUGH THE CITY OF RENTON,
WASHINGTON.
THE CITY COUNCIL OF THE CITY OF RENTON, WASHINGTON, ORDAINS AS FOLLOWS:
SECTION I. Definitions
For the purposes of this Franchise and any attachments, the following defined terms,
phrases, words and their derivations shall have the meaning provided below. When not
inconsistent with the context in which the word is used, words used in the present tense
include the future, words in the plural include the singular, words in lower case shall have their
defined meaning even if the words are not capitalized, and words in the singular include the
plural. Undefined words shall be given their common and ordinary meaning.
1.1 Administrator: Means the Administrator of Renton's Community and Economic
Development Department or designee, or any successor office responsible for management of
Renton's public properties.
1.2 Construct or Construction: Means to remove, replace, repair, and/or restore any
existing Facility, and may include, but is not limited to, digging and/or excavating to remove,
' replace, repair, and restore existing pipeline(s) and/or Facilities.
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ORDINANCE N0. 5788
1.3 Environmental Law: Means and shall include the Resource Conservation and
Recovery Act, 42 U.S.C. § 6901 et seq.; Comprehensive Environmental Response,
Compensation, and Liability Act, 42 U.S.C. § 9601 et seq.; Hazardous Materials Transportation
Act, 49 U.S.C. § 1801 et seq.; Federa) Water Pollution Control Act, 33 U.S.C. § 1257 et seq.;
Clean Air Act, 42 U.S.C. § 7401 et seq.; Toxic Substances Control Act, 15 U.S.C. § 2601 et seq.;
Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. § 136 et seq.; Occupational Safety
and Health Act, 29 U.S.C. § 651 et seq.; Washington Hazardous Waste Management Act, RCW
Chapter 70.105; and Washington Model Toxics Control Act, RCW Chapter 70.1050, as they exist
or may be amended; or any law protecting of human health or the environment.
1.4 Facilitv or Facilities: Means any Olympic pipeline, pipeline system, line, valve,
main, and appurtenance, part, structure or piece, used to transport, control, secure, route, or
distribute Olympic's Petroleum Product(s), existing as of the effective date of this Franchise, or
as those components may be added, constructed, modified or improved pursuant to this
Franchise.
1.5 Franchise: Means this Ordinance and any related amendments, attachments,
exhibits, or appendices.
1.6 Franchise Area: Means the Rights-of-Way, Public Ways and certain designated
Public Properties within Renton's jurisdictional boundaries, or under its control, including any
areas annexed by Renton (but excluding properties 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 shall become subject to the terms of this Franchise.
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1.7 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 Usability 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, RCW Chapter
70.105, and the Washington Model Toxics Control Act, RCW Chapter 70.1050, as they exist or
may be amended; or any other Laws. The term "Hazardous Substance" shall specifically include
petroleum and petroleum products and their by-products, residue, and remainder in whatever
form or state. The term "Hazardous Substance" shall also be interpreted to include any
substance which, after release into the environment, will or may reasonably be anticipated to
cause death, disease, injury, illness, abnormalities, behavioral abnormalities, stunted or
abnormal growth or development, or genetic abnormalities.
1.8 Improve or Improvements: Means modifications to, but not a change in, the
nature of the existing pipeline(s) and/or Facilities, and improvement projects.
1.9 Laws: Means any federal, state, or municipal code, statute, ordinance, decree,
executive order, guideline, regulation, regulatory program, rule, specification, standard,
Environmental Laws, or governmental authority, as they exist, are amended, or may be created,
that relate to petroleum, petroleum Operations (as defined in Subsection 1.12), Hazardous
Materials (as defined in Subsection 1.7), Maintenance and/or Improvement of Facilities (as
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ORDINANCE NC►. 5788
defined in Subsections 1.10 and 1.4, respectively, including but not limited to, 49 C.F.R. Part 195 '
(Transportation of Hazardaus Liquids by Pipeline), Federa! Pipeline Safety Act (49 U.S.C. 601Q1, ,
et seq.}, Pipeline Safety Code of Federai Regulations {Titie 49 CFR Part 186-399}, RCW 19.122, '
AC 480-7S Hazardous
Under round Utilities, RCW 81.88, Gas and Hazardous �iquid Pipelines, W ,
� I
l Liquid Pipelines—5afety, as they exist or may be amended.
I 1.10 Maintenance or Maintain: Means any examining, fixing, testing, inspecting, I
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instafling, repairing, repiacing, andJor restoration of the existing Facilities. �
1.11 Olympic: Means the Olympic Pipe Line Company, an interstate pipeline I
carporation incarporated in the State of Delaware, and its successors and assigns, and agents,
employees, contractars, subcontractors and valunteers.
1.12 Qperate or 4perations: Means �lympic's use of Facilities #o transport, distribute
and handle of Petroleum or Petroleum Products within and through the franchise Area.
1.13 Parties: Means the City of Renton and Olympic Pipe Line Company.
i 1.14 Petroieum ar Petroleum Praducts: Means and inciudes, but is not limited to,
motor gasoline, diesel fuel, and aviation jet fuel. It does not include natural gas.
1.15 Pipeline Corridor. Means the pipeline pathway through Renton's jurisdictional
boundaries in which Olympic Facilities are located, including any Rights-Qf-Way, designated
Public Property, Public Ways and/or easement over, under and through private property.
1.16 Public Froperties: Means present andJor future property owned or leased by
Renton within Renton's present andjor future control and/ar jurisdictianal baundaries.
1.17 Pubfic Wavs: Means any highway, street, ailey, sidewalk, utility easement (unless
their use is otherwise restricted for other users), or other public Rights-of-Way for motor
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ORDINANCE N0. 5788
vehicles or any other uses under Renton's control and/or in its jurisdictional boundaries,
consistent with RCW 47.24.020 (Jurisdiction, control) and 47.52.090 (Cooperative agreements
— Urban public transportation systems — Title to highway — Traffic regulations —
Underground utilities and overcrossings — Passenger transportation — Storm sewers — City
street crossings).
1.18 Renton: Means the City of Renton, a municipal corporation of the State of
Washington, and its successors and assigns.
1.19 Ri�hts-of-Wav: Means the surface and the space above and below streets,
roadways, highways, avenues, courts, thoroughfares, lanes, alleys, sidewalks, easements, and
similar Public Property, Public Ways, and areas located within the Franchise Area.
1.20 Work: Means to operate, construct, improve, and/or maintain by, for, or at
Olympic's request.
SECTION II. Purpose
2.1 Conditions: The purpose of this Franchise is to delineate the conditions relating
to Olympic's use of the Franchise Area and to create a foundation for the Parties to work
cooperatively in the public's best interests after this Ordinance becomes effective. This
Franchise is granted subject to Renton's land use authority, public highway authority, police
powers, and franchise authority, and is conditioned upon the terms and conditions provided in
this Franchise, and Olympic's compliance with all Laws.
2.2 Risk and Liabilitv: By accepting this Franchise, Olympic assumes all risks or
liabilities related to the Franchise, with no risk or liability conferred upon Renton except to the
extent of any risk or liability resulting from the negligence or willful misconduct of Renton, its
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ORDINANCE N0. 5788
employees or agents. This Franchise is granted upon the express condition that Renton retains
the absolute authority to grant other or further franchises in, under, on, across, over, through,
along or below any Franchise Area. This and other franchises shall, in no way, prevent or
prohibit Renton from using any of its Franchise Area, or affect its jurisdiction over them or any
part of them, and Renton retains absolute authority to make all changes, relocations, repairs,
maintenance, establishments, improvements, dedications or vacations of same as Renton may
see fit, including the dedication, establishment, maintenance and improvement of all new or
existing Rights-of-Way, Public Property or Public Ways.
SECTION III. Privileges Conveyed
3.1 Franchise Granted: Pursuant to the laws of the State of Washington including,
but not limited to, RCW 47.24.020 (Jurisdiction, control), RCW 47.52.090 (Cooperative
agreements — Urban public transportation systems — Title to highway — Traffic regulations —
Underground utilities and overcrossings — Passenger transportation — Storm sewers — City
street crossings), RCW 35A.47.040 (Franchises and permits — Streets and public ways), RCW
35A.21.160 (General application of laws to code cities), and RCW 35.22.280 (Specific powers
enumerated), as they exist or may be amended, Renton grants, under the terms and conditions
contained in this Franchise, to Olympic, a Delaware corporation which is authorized to transact
business within the State of Washington, and its successors and assigns (subject to and as
provided for in Section V), the privilege to construct, operate, maintain and improve its
Facilities, together with all necessary equipment and appurtenances, for the transportation and
handling of any Petroleum or Petroleum Products, within the existing Pipeline Corridor passing
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ORDINANCE NO. 5788
through the Franchise Area, such lands being more particularly described in Attachment 1
which is attached and fully incorporated by reference into the Franchise.
3.2 Limited Franchise: This Franchise conveys a limited privilege as to the Franchise
Area in which Renton has an actual interest. It is not a warranty of title or interest in the
Franchise Area. This privilege shall not limit Renton's police powers, any statutory or inherent
authority, jurisdiction over its property, Franchise Area, Rights-of-Way, or its zoning or land use
authority.
3.3 Franchise is Non-Exclusive: Renton grants this non-exclusive Franchise to
Olympic to operate, maintain and improve its existing Facilities as a liquid petroleum product
delivery system for Olympic's business.
3.4 Separate Approval Needed For New Pioeline: The limited privileges granted
under this Franchise shall not convey any right to Olympic to install any new pipeline or
Facilities without Renton's express prior written consent.
3.5 Acknowled�ement: Olympic acknowledges and warrants by its acceptance of the
granted privileges, that it has carefully read and fully comprehends the terms and conditions of
this Franchise. Olympic accepts all reasonable risks of the meaning of the provisions, terms and
conditions of the Franchise. Olympic 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 Laws.
3.6 Enforceable Contract: Olympic specifically agrees to comply with the provisions
of any applicable Laws, as they exist or may be amended. The express terms and conditions of
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the Franchise constitute a valid and enforceable contract between the Parties, subject to any I
Laws.
3.7 Prior Franchise Repealed: Upon the effective date of this Ordinance and
acceptance of such Ordinance and Franchise by Olympic, all prior franchises between Renton
and Olympic, or its predecessors in interest, which it has acquired for the distribution and sale
of electrical energy shall be deemed repealed.
SECTION IV. Term
4.1 Len�th of Term: Each of the provisions of this Franchise shall become effective
upon Olympic's acceptance of the terms and conditions of this Franchise and shall remain in
effect for ten (10) years, unless it is terminated pursuant to Section XIII, Termination, Violations,
and Remedies. At any time not more than three (3) years nor less than one hundred and eighty
(180) calendar days before the expiration of the Franchise term, Olympic may make a written
request and Renton 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 Extension upon Expiration: If the Parties fail to formally renew or terminate the
Franchise prior to the expiration of its term or any extension, the Franchise shall be extended
on a year-to-year basis (or such term as the Parties may mutually agree) until a renewed,
terminated or extended Franchise is executed.
SECTION V. Assignment and Transfer of Franchise
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5.1 Citv Council Aqproval Reauired: 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. Such consent shall not be deemed to waive any of Renton's rights to
subsequently enforce Franchise related non-compliance issues that existed at or before
Renton's consent.
5.2 Acceptance: If Renton consents, within thirty (30) calendar days of that consent,
Olympic shall file with Renton a written instrument evidencing such sale, assignment or transfer
of ownership, with the assignee(s) or transferee(s) acceptance of the Franchise and all of its
terms and conditions.
SECTION VI. Compliance with laws and Standards
6.1 Compliance: In every aspect related to this Franchise, including but not limited to
all Work, Olympic shall comply with all applicable Laws and/or standards, as they exist or may
be amended, whether specifically mentioned in this Franchise or not.
6.2 Le�itimate Municipal Interest: As to matters subject to the terms and conditions
of this Franchise, if Renton determines during the Franchise Term that the assertion of a
legitimate municipal interest is prohibited by application of federal or state law, then as to such
matter and such municipal interest and consistent with its legal obligations, Olympic shall �
cooperate with Renton in a good faith effort to address such municipal interest. In this context,
neither party shall invoke this Franchise as a basis to assert that its consideration of a given
issue is excused by operation of the doctrines of estoppel or waiver.
SECTION VII. Construction on or within Franchise Area
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ORDINANCE NO. 5788
7.1 Permits Required: Except in the event of an emergency, Olympic shall first obtain
all required permits from Renton to perform Work on Olympic's Facilities within the Franchise
Area. The permit application shall contain detailed plans and specifications showing the
position, depth and location of all such Facilities in relation to existing Franchise Area,
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. Olympic
shall submit to Renton as-built plans and, when available, digital facility location data in a
format compatible with the City's geographic information system. Such Work shall only
commence upon the issuance of required 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, Olympic shall provide Renton with at least
seventy-two (72) hours written notice prior to any Work on Olympic's Facilities.
7.2 Waiver of Permit for Emer�encv: In the event of an emergency requiring
immediate action by Olympic for the protection of any Facilities, Renton's property or the
property, life, health or safety of any individual, Olympic may act immediately to correct the
dangerous condition without first obtaining any required permit so long as: (1) Olympic notifies
the Renton Emergency Response staff through the dispatch system of the emergency; and (2)
Olympic informs Renton's 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, Olympic shall notify Renton's
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permitting authority on the next business day; and (3) such permit is obtained by Olympic as
soon as practicable following cessation of the emergency.
7.3 Bond Requirement: Before undertaking any of the Work authorized by this
Franchise, as a condition precedent to Renton's issuance of any permits, Olympic shall, upon
Renton's request, furnish a bond executed by Olympic and a corporate surety authorized to
� operate a surety business in the State of Washington, in a reasonable amount as set by the
Administrator as sufficient to ensure performance of Olympic's obligations under this Franchise
with respect to the performance of such Work. In lieu of a separate bond for routine individual
projects involving Work in the Franchise Area, Olympic may satisfy Renton's bond requirements
by posting a single on-going performance bond in an amount approved by the Administrator.
7.4 Workmanship: All Work done by Olympic or at Olympic's direction or on its
behalf, including all Work performed by contractors or subcontractors, shall be considered
Olympic's Work and shall be undertaken and completed in a workmanlike manner and in
accordance with the descriptions, plans and specifications Olympic provided to Renton.
Olympic's activities (including work done at Olympic's direction, or on its behalf) shall not
� damage or interfere with other franchises, licenses, utilities, drains or other structures, or the
Franchise Area, and shall not unreasonably interfere with public travel, park uses, other
municipal uses, adjoining property, and shall not endanger the safety of or injure persons and
property. Olympic's Work shall comply with all applicable Laws.
7.5 Dama�e durin� Work: In case of any damage caused by Olympic, or by Olympic's
Facilities to Franchise Area, Olympic agrees to repair the damage at its own cost and expense.
Olympic shall, upon discovery of any such damage, immediately notify Renton. Renton will
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inspect the damage, and set a reasonable time limit for completion of the repair. If Renton
discovers damage caused by Olympic to the Franchise Area, Renton will give Olympic notice of
the damage and set a reasonable time limit in which Olympic must repair the damage. In the
event Olympic does not make the repair as required in this Section, Renton may repair the
damage, to its satisfaction, at Olympic's sole expense.
7.6 Avoidin Interference b I m ' '
� v 0 v pic s Facilities: 01 m ic shall in reco nition that
Y p , g
there may be additional costs that accrue to Renton in the course of Renton's public works
projects related to avoidance of damage to and/or interference with Olympic's facilities with
the construction by Renton of street facilities, water, sewer, and other underground utilities,
agree to pay Renton the full amount of additional costs resulting from the existing Olympic
facilities.
7.7 Line Markers: Olympic shall place and maintain line markers pursuant to federal
regulations within and along the Pipeline Corridor. Olympic shall 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 except that Olympic need not place underground markers for any
section of pipeline installed via directional drilling or where such placement otherwise is
impractical.
7.8 Member of Locator Service: Olympic shall continuously be a member of the State
of Washington one number locator service under RCW 19.122, Underground Utilities, or an
approved equivalent, and shall comply with all applicable Laws.
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7.9 Free Passa�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.
7.10 Restoration Requirements: Olympic shall after Work on any of Olympic's
Facilities within the Franchise Area, restore the surface of the Franchise Area and any other
property within the Franchise Area which may have been disturbed or damaged by such Work.
All restoration of Rights-of-Way, sidewalks and other improvements or amenities shall conform
to the City of Renton Standard Specifications for Road, Bridge and Municipal Construction and
the City of Renton's Trench Restoration Standards in effect at that time. Renton shall have final
approval of the condition of the Franchise Area after restoration pursuant to applicable Laws,
as they exist or may be amended or superseded, provided that such provisions are not in
conflict or inconsistent with the express terms and conditions of this Franchise.
7.11 Survev Monuments: All survey monuments which are disturbed or displaced by
Olympic in its performance of any work under this Franchise shall be referenced and restored
by Olympic, in accordance with WAC 332-120, (Survey Monuments — Removal or Destruction),
as it exists or may be amended, and other applicable Laws.
7.12 Coordination: The Parties shall make reasonable efforts to coordinate any Work
that either party may undertake within the Franchise 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 Areas informed of its intent to undertake Work. The Parties shall make reasonable
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efforts to minimize any delay or hindrance to any construction work undertaken by themselves
or utilities with the Franchise Area.
7.13 Records: Olympic shall at all times keep full and complete plans, plat or plats,
specifications, profiles and records showing the exact location, and size of all facilities
heretofore constructed in Renton, and showing the location of all valves, gauges, and other
service appurtenances; and such plans, specifications, profiles, and records shall be kept
current annually by Olympic to show the exact location of all replacement and additional
facilities hereinafter installed by Olympic. These records shall be subject to inspection at all
reasonable times by the proper city officials and agents, and a copy of these plans,
specifications, profiles and records, shall be furnished to Renton upon request. Olympic shall,
upon Renton's request, field-locate its facilities in order to facilitate planning, design and
construction of Renton's improvement projects.
SECTION VIII. Abandonment or Removal of Facilities
8.1 Notification: Olympic shall notify Renton of any abandonment or cessation of
use of any of its Facilities within sixty (60) calendar days after such abandonment or cessation
of use.
8.2 Removal: In the event of Olympic's abandonment or permanent cessation of use
of any portion of its Facilities, or any portion of the Franchised Area, Olympic shall, within one
hundred and eighty (180) calendar days after the abandonment or permanent cessation of use,
remove the Facilities at Olympic's sole cost and expense. However, with Renton's express
written consent, Olympic may, at Olympic'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
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Products, purging vapors, displacing the contents of the line with an appropriate inert material
and sealing the pipe ends with a suitable end closure, in compliance with all Laws, and abandon
them in place, provided that any above-ground Facilities shall be removed at Olympic's sole
cost and expense.
8.3 Restoration: In the event of the removal of all or any portion of the Facilities, to
the extent reasonably possible, Olympic shall restore the Franchise Area to it pre-installation
condition. Such restoration work shall be done at Olympic's sole cost and expense and to
Renton's reasonable satisfaction. If Olympic fails to remove or secure the Facilities and/or fails
to restore the premises or take such other mutually agreed upon action, Renton may, after
reasonable notice to Olympic, remove the Facilities, restore the premises or take such other
action as is reasonably necessary at Olympic's sole expense and Renton shall not be liable for
any damages, loses or injuries. This remedy shall not be deemed to be exclusive and shall not
prevent Renton from seeking a judicial order directing Olympic to remove its Facilities.
8.4 Franchise Fees: Renton shall not charge Olympic franchise fees for any Facilities
or parts of Facilities abandoned or removed in compliance with this Section. However, Renton's
consent to Olympic's abandonment of Facilities in place shall not relieve Olympic 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 Renton's sole discretion, 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 Olympic shall perform such work its sole expense.
8.5 Survival of Provisions: The Parties expressly agree that the provisions of this
Section shall survive the termination, expiration, or revocation of this Franchise.
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SECTION IX. Operations and Maintenance—Inspection and Testing
9.1 Excavator Notice to Olvmpic: Consistent with RCW 19.122.033, Notice of
excavation to pipeline companies, Renton shall use reasonable efforts to inform all excavators
subject to a city grading and/or right-of-way permit working within one hundred feet (100') 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 State of Washington one number
locator service laws (RCW 19.122, Underground Utilities). Renton shall not be liable for any
damage, loss or injury caused by a third-party that Renton failed to notify, or a third-party's
failure to notify Olympic of any work near or affecting Olympic's facilities.
9.2 Pipeline Maintenance Requirements: Olympic shall at all times comply with
applicable Laws, including but not limited to, RCW 19.122, RCW 81.88 and WAC 480-75 and all
federal regulations governing pipeline safety and maintenance, including those specified in 49
C.F.R. Part 195.
SECTION X. Damage Prevention Program
Dama�e Prevention Plan Reauired: Upon request, Olympic shall provide Renton with a
copy of its written Damage Prevention Program. The Damage Prevention Program is a ten
(10)-page document that describes Olympic's requirements for public notice and follow-up in
connection with excavation activities around its pipelines. The Program consists of the
following categories: State One-Call Participation, One-Call Notifications, Ticket Processing,
Pipeline Right-of-Way Patrol (Aerial and Ground) Programs, Pipeline Security, Operator
Qualification Program, Public Awareness Programs, Pipeline Marker Programs, Right-of-Way
Maintenance and Program assurance processes.
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SECTION XI. Leaks, Spills, Ruptures and Emergency Response
11.1 Emer�encv Resqonse Plan: Upon request, Olympic will allow Renton to view its
Emergency Response Plan. Olympic shall provide to Renton its local emergency response
officials contacts and a direct twenty-four (24)-hour emergency contact number.
11.2 Trainin� and Emer�encv Preparedness: Annually, upon the request of Renton,
Olympic will meet with Renton Fire and Emergency Services and Renton Emergency
Management to coordinate emergency operations plans and update contact information.
Olympic shall offer emergency response training to Renton personnel to conform with, and
specifically limited in scope to the requirements of 49 CFR § 195.403 and all applicable Laws.
11.3 Recoverv of Costs: Olympic shall be solely responsible for all costs incurred by
Renton 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.
11.4 Notice Required: Leaks, spills, ruptures, and other emergencies shall be
investigated and reported as required by all applicable Laws including all state and federal
regulations. Pursuant to the Emergency Response Plan, Olympic shall promptly notify the
Nationa) Response Center, the Washington State Department of Emergency Management, and
the Washington State Department of Ecology in the event of any uncontained leak, spill or
rupture, outside of a vault or pump station, of petroleum product from its Facilities within or
affecting the Franchise Area. Pursuant to RCW 19.122.035, Olympic shall immediately notify
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Renton of any reportable release of a hazardous liquid that poses a threat to persons or
property from a pipeline.
11.5 Reportin� of Leak Event: Olympic agrees to comply with applicable reporting
requirements established by relevant state or federal regulatory authorities in the event of a
' leak, spill, rupture or other emergency involving a release from Olympic's pipeline within the
Franchise Area.
11.6 Investi�ation Reauired: In the event of an uncontained leak, spill or rupture from
Olympic's Facilities affecting the Franchise Area of ten (10) barrels or more, where the cause is
not reasonably apparent, and where federal or state regulators do not investigate, Renton may
demand that an independent pipeline consultant, selected by Renton, investigate the
occurrence. Olympic shall be solely responsible for paying all of the consultant's costs and
expenses incurred in investigating the occurrence and reporting the findings. Olympic shall
meet and confer with the independent consultant following the consultant's investigation to
address whether any modifications or additions to Olympic's Facilities may be warranted. In
cases where federal or state regulators do perform an investigation, Olympic will share the
investigation results with Renton within sixty (60) calendar days of the investigation's
completion.
SECTION XII. Required Relocation of Facilities
12.1 Relocation of Facilities: Olympic agrees and covenants at its sole cost and
expense, to protect, support, temporarily disconnect, relocate or remove from any street or
Public Properties, any of its installations when so required by Renton by reason of traffic
conditions, public safety, street vacations, dedications of new rights-of-way and the
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establishment and improvement thereof, 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, provided that Olympic shall in all such cases have the
privilege to temporarily bypass, in the authorized portion of the same street upon approval by
Renton, any section of pipeline required to be temporarily disconnected or removed.
12.2 Written Notice: Renton shall provide to Olympic reasonable written notice of any
' Improvement that requires changes to or the relocation of Facilities. Renton will endeavor,
where practical, to provide Olympic at least three hundred and sixty-five (365 calendar da s
) Y
prior written notice, or such additional time as may appropriate, of such Improvement for
relocation of facilities across or within watersheds, across or within critical habitats, or across or
within areas involving undeveloped land to provide adequate time for proper environmental
permitting. Renton shall provide at least one hundred and eighty (180) calendar days prior
written notice for all other relocation of Facilities in all other areas. Nothing in this Section
relieves Olympic of its duty and obligation to relocate its Facilities to accommodate any Renton
or governmental Improvement undertaken after receiving written notice.
12.3 Proiect Plans: Renton will provide Olympic with copies of pertinent portions of
the final plans and specifications for such Improvement so that Olympic may make the required
changes to or relocate its Facilities to accommodate such Improvement.
12.4 Consideration of Alternatives: Olympic may, after receipt of written notice
requiring changes to or relocation of its Facilities under Subsection 12.2, submit to Renton,
within ninety (90) calendar days, proposed written alternatives to such relocation. Renton shall
evaluate such alternatives and advise Olympic in writing if one or more of the alternatives are
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ORDINANCE NO. 5788
suitable to accommodate the Improvement that would otherwise necessitate changes to or
relocation of the Facilities. If requested by Renton, Olympic shall submit additional information
to assist Renton in making such valuation including actual field verification of the location(s) of
Olympic's underground Facilities within the Improvement area by excavating (e.g., pot holing),
at no expense to Renton. Renton shall 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.
12.5 Five-Year Relocation: If any portion of Olympic's Facilities that has been required
by Renton to be relocated under the provisions of this Section is subsequently required to be
relocated again within five (5) years of the original relocation, Renton will bear the entire cost
of the subsequent relocation.
12.6 Private Development: Olympic shall not be required to relocate its Facilities at its
expense for the benefit of private developers or third-party projects, unless the third-party is a
governmental entity. However, in the event that Renton 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 an Improvement consistent
with the City Capital Investment Plan; Transportation Improvement Program; or the
Transportation Facilities Program, or other similar plan, then Olympic shall change or otherwise
relocate its Facilities in accordance with Subsection 12.1 at Olympic's sole cost, expense and
risk.
12.7 Route Selection for Relocation: Renton shall work cooperatively with Olympic in
determining a viable and practical route for Olympic to relocate its Facilities under Subsection
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ORDINANCE NO. 5788 '
12.1, to minimize costs while meeting Renton's project timelines and objectives. Renton'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 must be consistent with applicable
Laws, however, nothing in this Section shall be construed as limiting Renton's police power,
land use authority, franchise authority or Renton's authority to regulate the time, place and
manner of Olympic's use of the Public Rights-of-Way, Public Property, and Public Ways.
12.8 Timin� for Relocation Work: Upon receipt of Renton's reasonable notice, plans
and specifications pursuant to Subsection 12.1, Olympic shall take all necessary and prudent
measures to complete relocation of such facilities to accommodate the Improvement at least
ten (10) calendar days prior to commencement of the Improvement or such time as the Parties
may agree in writing.
12.9 Support for Outside Fundin�: Renton shall take reasonable steps to cooperate
with Olympic if Olympic requests support in Olympic's application for any local, state or federal
funds that may be available for the relocation of Olympic's Facilities, provided however that
Olympic's application for any such funds shall not delay any city Improvement. To the extent
such funds are granted, Olympic may apply funds towards the incurred relocation costs.
SECTION XIII. Termination, Violations, and Remedies
13.1 Expiration/Renewal: The term of this Franchise shall be extended for an
additional ten (10) year period unless either party provides written notice within eighteen (18)
months of the expiration date that it wishes to renegotiate the Franchise terms.
13.2 Termination bv Breach: If Olympic materially breaches or otherwise fails to
perform, comply with any of the material terms and conditions of this Franchise, or fails to
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ORDINANCE N0. 5788
maintain any required license, permit or approval, and fails to cure such breach or failure within
thirty (30) calendar days of Renton providing Olympic with written notice, or, if not reasonably
capable of being cured within thirty (30) calendar days, within such other reasonable period of
time as the Parties may agree upon, Renton may terminate this Franchise.
13.3 City Council Termination: This Franchise shall not be terminated except upon a
majority vote of the City Council, after reasonable notice to Olympic and an opportunity to be
heard, provided that if exigent circumstances necessitate immediate termination, the hearing
may be held as soon as possible after the termination.
� 13.4 Discontinue Operations: If the Franchise is terminated, either party may invoke
the dispute resolution provisions in Section XIV or elect to seek relief directly in Superior Court,
in which case the dispute resolution requirements shall not be applicable. Once Olympic's
privilege to Operate in the Franchise Area has terminated, Olympic shall comply with Franchise
provisions regarding removal and/or abandonment of Facilities in Section VIII.
13.5 Retention of Ri�hts: Either party's failure to exercise a particular remedy at any
time shall not waive Renton's right to terminate, assess penalties, or assert any equitable or
legal remedy for any future breach or default by Olympic.
13.6 Olvmpic Liabilitv and Obligation: Termination of this Franchise shall not release
Olympic from any liability or obligation with respect to any matter occurring prior to such
termination, and shall not release Olympic from any obligation to remove and secure the
pipeline pursuant to this Franchise and to restore the Franchise Area.
13.7 Iniunctive Relief: The Parties acknowledge that the covenants set forth in this
Franchise are essential to this Franchise, and, but for the mutual agreements of the Parties to
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ORDINANCE N0. 5788
comply with such covenants, the Parties would not have entered into this Franchise. The
Parties further acknowledge that they may not have an adequate remedy at law if the other
party violates such 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.
13.8 Renton's Remedies: In addition to the terms of this Franchise, or rights that
Renton possesses at law or equity, Renton reserves the right to apply any of the following
remedies, alone or in combination, in the event 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 shall not prevent the exercise of another or any rights of Renton at law
or equity.
SECTION XIV. Dispute Resolution
14.1 Meetin� of Representatives: In the event of a dispute between Renton and
Olympic related to this Franchise, the dispute shall first be referred to the representatives
designated by the Parties to have oversight over the administration of this Franchise. The
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 Mediation: In the event that the Parties are unable to resolve the dispute in a
Subsection 14.1 meeting, the Parties 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
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ORDINANCE N0. 5788
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 Judicial Remedies: 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 attorneys' and legal fees and costs incurred in the judicial action.
14.4 Operation Durin� Dispute Resolution: Subject to Laws, Olympic shal) be
permitted to continuously operate its Facilities during dispute resolution.
SECTION XV. Indemnification
15.1 Renton: In Sections XV and XVI, "Renton" means the City of Renton, and its
elected officials, agents, employees, officers, representatives, consultants (of any level), and
volunteers.
15.2 General Indemnification: Olympic shall indemnify, defend, and hold harmless
Renton from and against any and every action, claim, cost, damage, death, expense, harm,
injury, liability, or loss of any kind, in law or equity, to persons or property, including reasonable
attorneys' and experts' fees and/or costs incurred by Renton in its defense, arising out of or
related to, directly or indirectly, Olympic's Work or abandonment of Facilities, or from the
existence of Olympic's Facilities, and the products contained in, transferred through, released
or escaped from the Facilities, including the reasonable costs of assessing such damages and
any liability for costs of investigation, abatement, correction, cleanup, fines, penalties, or other
damages arising under any Laws, including, but not limited to, Environmental Laws, and any
24
ORDINANCE N0. 5788
action, claim, cost, damage, death, expense, harm, injury, liability, or loss, to persons or
property which is caused by, in whole or in part, and only to the extent of, the willfully tortious
or negligent acts or omissions of Olympic or its agents, contractors (of any tier), employees,
I representatives or trainees related to Olympic's granted Franchise privileges. If any action or
proceeding is brought against Renton by reason of Olympic's Facilities, Olympic shall defend
Renton at Olympic's sole expense, provided that, for uninsured actions or proceedings, defense
attorneys shall be approved by Renton, which approval shall not be unreasonably withheld. The
terms of this Section shall not require Olympic to indemnify Renton against and hold harmless
Renton from claims, demands, suits or actions based upon Renton's negligent conduct or
willful misconduct, and provided further that if the claims or suits are caused by or result from
the concurrent negligence of (a) Olympic's agents, officers, or employees and (b) Renton, this
provision with respect to claims, demands, suits or actions based upon such concurrent
negligence shall be valid and enforceable only to the extent of Olympic's negligence or the
negligence of Olympic's agents or employees.
15.3 Environmental Indemnification: Olympic shall indemnify, defend and save
Renton harmless from and against any every action, claim, cost, damage, death, expense, harm,
injury, liability, or loss, either at law or in equity, to persons or property, including, but not
limited to, costs and reasonable attorneys' and experts' fees incurred by Renton, arising directly
or indirectly from: (a) Olympic's breach of any Environmental Laws or Laws applicable to the
Facilities, or (b) from any release of a hazardous substance on or from the Facilities, or (c) other
activity related to this Franchise by Olympic. This indemnity includes, but is not limited to, (a)
liability for a governmental agency's costs of removal or remedial action for Hazardous
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ORDINANCE N0. 5788
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; (d) liability for any investigation, abatement, correction,
cleanup, costs, fines, penalties, or other damages arising under any Laws; and (e) liability for
personal injury, property damage, or economic loss arising under any statutory or common-law
theory or Laws.
15.4 Title 51 Waiver: Olympic's indemnification obligations pursuant to this Section
shall include assuming potential liability for actions brought by Olympic's own employees and
the employees of Olympic's agents, representatives, contractors (of any tier) even though
Olympic might be immune under RCW Title 51 from direct suit brought by such employees. It is
expressly agreed and understood that this assumption of potential liability for actions brought
by the aforementioned persons is limited solely to claims against Renton arising by virtue of
Olympic's exercise of the privileges set forth in this Franchise. The obligations of Olympic under
this Section have been mutually negotiated by the Parties, and Olympic acknowledges that
Renton would not enter into this Franchise without Olympic's waiver of immunity.
15.5 Notice: In the event any matter for which Renton intends to assert its rights
under this Section is presented to or filed with Renton, Renton shall promptly notify Olympic in
writing and Olympic shall have the privilege, at its election and at its sole costs and expense, to '�,
settle and compromise such matter as it pertains to Olympic's responsibility to indemnify,
defend and hold harmless Renton. In the event any suit or action is started against Renton
based upon any such matter, Renton shall likewise promptly notify Olympic in writing, and
Olympic shall have the right, at its election and at its sole cost and expense, to settle and
26
ORDINANCE N0. 5788
compromise such suit or action, or defend the same at its sole cost and expense, by attorneys
of its own election, as it pertains to Olympic's responsibility to indemnify, defend and hold
harmless Renton.
15.6 Real Estate Indemnitv: Should a court of competent jurisdiction determine that
this Franchise is subject to RCW 4.24.115, (Validity of agreement to indemnify against liability
for negligence relative to construction, alteration, improvement, etc.,...), as it exists or may be
amended, then, 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, its
officers, officials, employees, and volunteers and/or the contractor, or Renton, its elected
officials, officers, officials, employees, and volunteers, and or the contractor, the party's liability
shall be only to the extent of the party's negligence.
15.7 Recoverv of Costs: In the event that (a) Olympic wrongfully rejects Renton's
proper tender of defense of, and Renton is thus required to defend a "suit or action" as
referenced in Subsection 15.1 and (b) Renton is determined to be without fault for the claim or
demand giving rise to such "suit or action," Olympic shall reimburse Renton for a percentage of
Renton's total defense costs. The percentage of Renton's total defense costs to be reimbursed
shall be a percentage equal to the percentage (if any) of fault attributable to Olympic for the
claim or demand giving rise to such "suit or action."
15.8 Survival: The provisions of this Section shall survive the expiration or termination
of this Franchise if the basis for any such claim, demand, suit or action as referenced in
Subsection 15.2 occurred during the Franchise Term.
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ORDINANCE NO. 5788
15.9 Ne�otiated: THE PARTIES HAVE SPECIFICALLY NEGOTIATED SECTION XV,
INDEMNIFICATION.
SECTION XVI. Insurance
16.1 Insurance Required: Olympic shali procure and maintain for the duration of the
Franchise, insurance, or provide evidence of 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
privileges granted by Franchise to Olympic. Olympic shall provide to Renton an insurance
certificate, and/or a certificate of self-insurance, together with an endorsement on the general
and automotive liability policies, naming Renton as an additional insured upon Olympic's
acceptance of this Franchise, and such insurance certificate shall evidence the following
minimum coverages:
A. Commercial �eneral liabilitv insurance for the Facilities, including but not limited
to, coverage for premises - operations, explosions and collapse hazard, underground
hazard and products completed hazard, with limits not less than one hundred million
dollars ($100,000,000) for each occurrence and in the aggregate for bodily injury or
death to each person, and property damage; and
B. Commercial automobile liabilitv for owned, non-owned and hired vehicles with a
limit of two million dollars ($2,000,000) for each person and two million dollars
($2,000,000) for each accident; and
C. Worker's compensation within statutory limits and consistent with the Industrial
Insurance laws of the State of Washington; and
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ORDINANCE NO. 5788
D. Pollution Le�al Liabilitv shall be in effect throughout the entire Franchise Term,
with a limit not less than fifty million dollars ($50,000,000) for each occurrence, and in
the aggregate to the extent such coverage is reasonably available in the marketplace for
any pollution condition or occurrence after January 1, 2016; and
E. Excess or umbrella insurance Any and all above policy limits may be met through
a combination of primary, excess, or umbrella coverage, at Olympic's option.
16.2 Claims Made Basis: If coverage is purchased on a "claims made" basis, then
Ofympic warrants continuation of coverage, either through policy renewals or the purchase of
an extended discovery period, if such extended coverage is available, for not less than three (3)
years from the date of termination of this Franchise and/or conversion from a "claims made"
form to an "occurrence" coverage form.
16.3 Deductibles: All deductibles shall be the sole responsibility of Olympic. 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.
16.4 Additional Insured: Renton, its officers, officials, employees, agents and
volunteers shall be named as an additional insured on the commercial general liability,
automobile liability, and excess liability or umbrella insurance policies, as respects to work
performed by or on behalf of Olympic. An endorsement naming Renton as additional insured
shall be indicated on the certificate of insurance or certification of self-insurance.
16.5 Primarv Insurance: Olympic's insurance shall be primary insurance with respect
to Renton. Any insurance maintained by Renton shall be in excess of Olympic's insurance and
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ORDINANCE NO. 5788
shall not contribute with it. Olympic shall give Renton thirty (30) calendar days prior written
notice by certified mail, return receipt requested, of suspension or material change in coverage.
Renton does not represent that the minimum required insurance coverage and limits under this
Franchise are adequate to protect Olympic from all liability exposures and related costs.
16.6 Cancellation: 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, without the issuing company giving sixty (60) days prior
written notice to the certificate holder." In the event of cancellation or a decision not to renew,
Olympic shall obtain and furnish to Renton evidence of replacement insurance policies meeting
the requirements of this Section before the cancellation date.
16.7 Certificates and Endorsements: Olympic shall furnish Renton with certificates of
insurance evidencing the coverage or self-insurance 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 Renton prior
to the commencement of any Work.
16.8 Separate Covera�e: Olympic's insurance shall contain a clause stating that
coverage shall apply separately to each insured against whom claim is made or suit is brought,
except with respects to the limits of the insurer's liability.
16.9 Self-Insurance: In addition to the foregoing insurance/self-insurance
requirements, Olympic may also insure or self-insure against additional risks in such amounts as
are consistent with prudent utility practices. Olympic shall, upon request, provide Renton with
sufficient evidence that such self-insurance is being so maintained.
30
ORDINANCE N0. 5788
16.10 Survival: Th '
e indemnit and insurance rovisions under Sec i n
Y p t o s XIV and XV shall
survive the termination of this Franchise and shall continue for as long as Olympic's Facilities
remain in or on the Franchise Area or until the Parties execute a new Franchise that modifies or
terminates these indemnity or insurance provisions.
SECTION XVII. Annual Franchise Fee
17.1 Fee Amount: As consideration for this Franchise and for the use of the
Franchise Area, Olympic agrees to pay an annual fee of fifteen thousand dollars ($15,000).
17.2 Annual Increase: The annual fee shall increase each year throughout the Term of
this Franchise and any renewal terms by CPI-W.
17.3 Annual Pavment Due: Each annual payment shall cover the following 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 an late a ment at the rate of twelve ercent 12% r
Y p Y p ( ) pe
annum. Such interest shall be in addition to any applicable penalties for late payment. Any
I partial payment shall first be applied to any penalties,then interest, then to principal.
17.4 Additional Administrative Expenses: The Franchise fee set forth in Subsection
17.1 does not include, and Olympic agrees that it is responsible for, payments associated with
Renton's expenses incurred in reviewing, inspecting, licensing, permitting or granting any other
approvals necessary for Olympic to operate and maintain its Facilities or for any inspection or
enforcement costs (i.e., customary permitting fees). The annual fee does not include any
generally applicable taxes that Renton may levy.
17.5 Cost of Publication: Olympic shall bear the entire cost of publication of this
Ordinance.
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ORDINANCE N0. 5788
SECTION XVIiI. Olympic Accepts Franchise Area "As Is"
Olympic agrees and accepts the Franchise Area in an "as is" condition. Olympic agrees
that Renton 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 Franchise
Area, or possible hazards or dangers arising from other uses or users of the Franchise Area,
Rights-of-Way, Public Property, and Public Ways including any use by Renton, the general
public, or by other utilities. As to Renton and Olympic, Olympic shall remain solely and
separately liable for the Work, function,testing, maintenance, replacement and/or repair of the
Facilities or other activities permitted by this Franchise.
SECTION XIX. Discrimination Prohibited
In connection with this Franchise, including and not limited to all Work, hiring and
employment, neither Olympic nor its employees, agents, subcontractors, vofunteers or
representatives shall discriminate on the basis of race, color, sex, religion, nationality, creed,
marital status, sexual orientation or preference, age (except minimum age and retirement
provisions), honorably discharged veteran or military status, or the presence of any sensory,
mental or physical handicap, unless based upon a bona fide occupational qualification in
relationship to hiring and employment, in employment or application for employment or in the
administration of the delivery of services or any other benefits under this Franchise. Olympic
shall comply fully with all applicable Laws that prohibit such discrimination. A copy of this
language must be made a part of any contractor or subcontractor agreement.
SECTION XX. Notice
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ORDINANCE NO. 5788
20.1 Whenever notice to or notification by any party is required, that notice shall be
in writing and directed to the recipient at the address set forth below, unless written notice of
change of address is provided to the other party. Any notice or information required or
permitted to be given to the Parties under this Franchise may be sent to following Addresses
unless otherwise specified:
City Address:
City of Renton
Administrator, Community and Economic Development Department
1055 South Grady Way
Renton, WA 98057
With copy to:
City of Renton
Fire Chief, Fire and Emergency Services Department
1055 South Grady Way
Renton, WA 98057
Company:
Olympic Pipe Line Company
Attn: President
600 SW 39th Street, Suite 275
Renton, WA 98059
With copy to:
Christopher T. Wion
Miller Nash Graham & Dunn LLP
Pier 70, 2801 Alaskan Way, Suite 300
Seattle, WA 98121
20.2 If the date for making any payment or performing any act is a legal holiday,
payment may be made or the act performed on the next succeeding business day which is not a
legal holiday.
20.3 The Parties may change the address and representative by providing written
notice of such change by accepted e-mail or certified mail. All notices shall be deemed
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ORDINANCE N0. 5788
complete upon actual receipt or refusal to accept delivery. Facsimile or a .pdf e-mailed ,
transmission of any signed original document and retransmission of any signed facsimile
transmission shall be the same as delivery of an original document.
SECTION XXI. Miscellaneous
21.1 Amendment and Modification: This Franchise may be amended only by an
instrument in writing, duly executed by both Parties. ,
21.2 Assi�nees and Successors: This Franchise and all of the terms and provisions shall
be binding upon and inure to the benefit of the Parties' respective successors and assignees.
21.3 Assi�nment: Olympic may not assign or transfer this Franchise without the
written consent of the City Council of Renton, which consent shall not be unreasonably
withheld. Any assignee or transferee shall, at least thirty (30) calendar days prior to the date of
any assignment or transfer, file written notice of the assignment or transfer with Renton,
together with its written acceptance of all of the Franchise terms and conditions. Olympic shall
have the right, without such notice or such written acceptance, to mortgage its benefits and
privileges in and under this Franchise to the trustee for its bondholders. The Franchise terms
and conditions shall be binding upon the Parties' respective assigns and successors.
21.4 Confidentialitv: Subject to the limits of applicable state and/or federal law,
including but not limited to RCW 42.56, Renton agrees to treat as confidential any records that
constitute proprietary or confidential information under federal or state law, to the extent
Olympic makes Renton aware of the need for confidentiality by clearly and conspicuously
identifying any such material as confidential and/or proprietary. If Renton receives a request
from any person for public disclosure of any information or documents designated by Olympic
34
ORDINANCE N0. 5788
as confidential and/or proprietary ("Confidential Materials"), Renton will so advise Olympic and
provide Olympic with a copy of any written request by the party demanding access to such
Confidential Materials at least five (5) days before publicly disclosing any such Confidential
Materials. If Olympic believes that disclosure of the Confidential Materials would interfere with
Olympic's rights under federal or state law, Olympic may take appropriate legal action to
prevent disclosure of such materials. Consistent with applicable law, Olympic may seek to
obtain a court order precluding public disclosure of any Confidential Materials. Olympic will
join the party requesting the materials to any such action. Olympic will defend, indemnify and
hold Renton harmless from any associated claim or judgment including any associated claim or
judgment including penalties or costs under all applicable laws including but not limited to RCW
42.56.
21.5 Conflicts: If there is a conflict between this and any previous Franchise between
the Parties, the terms of this Franchise shall supersede the terms of the previous Franchise.
21.6 Contractors (of anv tier�: Olympic's Contractors may act on Olympic's behalf to
the extent that Olympic permits its Contractors to do so. Olympic's contractors shall also have
every obligation, duty and responsibility that Olympic has in discharging its duties related to
this Franchise.
21.7 Force Maieure: In the event that Olympic is prevented or delayed in the
performance of any of its obligations under this Franchise by reason(s) beyond the reasonable
control of Olympic, then Olympic's performance shall be excused during the Force Majeure
occurrence. Upon removal or termination of the Force Majeure occurrence Olympic shall
promptly perform the affected obligations in an orderly and expedited manner under this
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ORDINANCE NO. 5788
Franchise or procure a substitute for such obligation or performance that is satisfactory to
Renton. Olympic shall not be excused by mere economic hardship or by misfeasance or
malfeasance of its directors, officers or employees. Events beyond Olympic's reasonable
control include, but are not limited to, Acts of God, war, acts of domestic terrorism or violence,
civil commotion, labor disputes, strikes, earthquakes, fire, flood or other casualty, shortages of
labor or materials, government regulations or restrictions and extreme weather conditions.
Olympic shall use all commercially reasonable efforts to eliminate or minimize any delay caused
by a Force Majeure Event.
21.8 Governin� Law: This Franchise shall be made in and shall be governed by and
interpreted in accordance with the laws of the State of Washington.
21.9 Jurisdiction and Venue: Any lawsuit or legal action brought by any party to
enforce or interpret this Franchise or any of its terms or 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 Regiona)Justice Center, Kent, Washington.
21.10 Modification of Terms and Conditions: Notwithstanding any provisions of this
Franchise to the contrary, Renton and Olympic reserve the right to alter, amend or modify the
terms and conditions of this Franchise upon written agreement of both Parties to such
alternation, amendment or modification.
21.11 No Dutv by Renton: This Franchise neither creates any duty by Renton nor any of
its elected officials, agents, employees or representatives, and no liability arises from any action
, or inaction by Renton or any of its elected officials, agents, employees or representatives in the
exercise of their powers or authority. This Franchise is not intended to acknowledge, create,
36
ORDINANCE N0. 5788
imply or expand any duty or liability of Renton 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 Renton
by this Franchise shall be deemed a duty to the general public and not to any specific party,
group or entity.
21.12 Olvmpic's Acceptance: Renton may void this Franchise Ordinance if Olympic fails
to file its unconditional acceptance of this Franchise within thirty (30) calendar days from the
final passage of same by the Renton City Council. Olympic shall file this acceptance with the City
Clerk of the City of Renton.
21.13 Other Obli�ations: This Franchise shall not alter, change or limit Olympic's
obligations under any other agreement or its obligations as it relates to any other property or
endeavor.
21.14 R n n'
e to s Police Powers: Nothin in this Franchise shall diminish or eliminate or
g , ,
be deemed to diminish or eliminate that governmental or police powers of Renton.
21.15 Public Document/Public Disclosure: This Franchise will be considered a public
document and will be available for reasonable inspection and copying by the public during
regular business hours. This document may be disclosed pursuant to RCW 42.56 (Public Records
Act).
21.16 Remedies Cumulative: Any remedies provided for under the terms of this
Franchise are not intended to be exclusive, but shall be cumulative with all other remedies
available to Renton at law, in equity, or by statutes, unless specifically waived in this Franchise
or in a subsequent signed document.
37 '
ORDINANCE N0. 5788
21.17 Section Headin�s: 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.
I 21.18 Severabilitv: 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 so as to give effect to
h in n i
t e te t ons of the Parties. If severance from this Franchise of the articular rovision s
p p � )
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.
21.19 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
Renton and Olympic. This Franchise shall not release or discharge any obligation or liability of
any third-party to either party.
21.20 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.
38
ORDINANCE N0. 5788
21.21 Waiver of Worker's Compensation Immunitv: Olympic waives its Worker's
Compensation immunity under RCW Title 51 in any cases involving Renton and affirms that
Renton and Olympic have specifically negotiated this provision, to the extent it may apply.
SECTION XXII. Effective Date
This Ordinance shall be in full force and effect from and after its passage, approval, and
five (5) calendar days after its legal publication as provided by law, and provided it has been
I duly accepted by Olympic as provided above.
PASSED BY THE CITY COUNCIL this 28th day of March , 2016.
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Jason . Seth, Ci Clerk
APPROVED BY THE MAYOR this 28th day of arch , 2016.
Denis aw, Mayor
App ved as to form:
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Lawrence J. Warren, City Attorney ��c Cti�� _
�z ,J � �;
Date of Publication: April 1, 2016 (summarv) % � �
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ORD:1914:3/8/16:scr -��%• ,:����>"
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39
ORDINANCE N0. 5788
UNCONDITIONAL ACCEPTANCE
The undersigned, Olympic Pipe Line Company, accepts all the privileges of the above-granted
franchise, subject to all the terms, conditions, and obligations of this franchise.
DATED: �Y1� � � , 2016.
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Olympic Pipe Line Company
Vvv` �
By� MA�C �Io r tJ
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�ts �
40