HomeMy WebLinkAboutord2021-020'
Whatcom County
COUNTY COURTHOUSE
311 Grand Avenue, Ste #105
Bellingham, WA 98225-4038
(360) 778-5010
•
Agenda Bill Master Report
File Number: AB2021-171
File ID: AB2021-171
Version: 1
Status: Substitute Adopted
File Created: 03/10/2021
Entered by: AHester@co.whatcom.wa.us
Department: Public Works
File Type: Ordinance Requiring a Public Hearing
Department
Assigned to: Council
Final Action: 04/20/2021
Agenda Date: 04/20/2021
Enactment#: ORD 2021-020
Primary Contact Email: Sdraper@co.whatcom.wa.us
TITLE FOR AGENDA ITEM:
Ordinance granting Trans Mountain Pipeline (Puget Sound) LLC, a non-exclusive franchise for pipeline
facilities
SUMMARY STATEMENT OR LEGAL NOTICE LANGUAGE:
RCW 36.55.040, Whatcom County Charter Section 9.30, and Whatcom County Code
12.24 provides for the granting of franchises to public and private utility companies for use
of County Rights -of -Way. This is a franchise allowing for the use and presence in County
Rights -of -Way to allow for pipeline facilities
HISTORY OF LEGISLATIVE FILE
Date: Acting Body:
Action:
Sent To:
03/23/2021 Council INTRODUCED FOR PUBLIC Council
HEARING
Aye: 7 Browne, Buchanan, Byrd, Donovan, Elenbaas, Frazey, and Kershner
Nay: 0
Absent: 0
04/20/2021 Council SUBSTITUTE ADOPTED
Aye: 6 Browne, Buchanan, Byrd, Elenbaas, Frazey, and Kershner
Nay: 0
Absent: 0
Abstain: 1 Donovan
Whatcom County Page 1 Printed on 412212021
Agenda Bill Master Report Continued (AB2021-171)
Attachments: Staff memo, Proposed Ordinance, Substitute Ordinance, Franchise Application, Letter from
Adelstein, Sharpe & Serka 2021-171
Whatcom County Page 2 Printed on 412212021
Whatcom County, WA C
Total:$131.50 Pgs=29 20L21 -OVOo4 Ao�f L
FRAN 06/02/2021 11:43 AM
Requestof: WHATCOM COUNTY COUNCIL
00289641202106004020290291
RETURN DOCUMENT TO:
CATHY HALKA
WHATCOM COUNTY
COUNCIL OFFICE
DOCUMENT TITLE(S): FRANCHISE
Ordinance No. 2021-020 granting the Trans Mountain Pipeline (Puget Sound) LLC a non-
exclusive franchise to construct, operate, maintain, remove, replace, and repair existing
pipeline facilities, together with appurtenances thereto, for the transportation of petroleum
products and by products within and through the franchise area.
REFERENCE NUMBER(S) OF DOCUMENTS ASSIGNED OR RELEASED:
Ordinance Number: 2021-020
Additional reference numbers found on page of document.
GRANTOR(S):
Whatcom County
Additional grantors found on page of document.
GRANTEE(S):
Trans Mountain Pipeline (Puget Sound) LLC
Additional grantees found on page of document.
ABBREVIATED LEGAL DESCRIPTION (Lot, block, plat, or section, township, range)
Public roads, streets, avenue, alleys, highways, grounds and other public places of
the County as described in Exhibit A (Franchise Area) of Ordinance 2021-020.
Additional legal description can be found on page of document.
ASSESSOR'S PARCEL NUMBER:
None - roads
SPONSORED BY:
PROPOSED BY: Executive
INTRODUCTION DATE:
ORDINANCE NO. 2021-020
GRANTING TRANS MOUNTAIN PIPELINE (PUGET SOUND) LLC, A DELAWARE
LIMITED LIABILITY COMPANY, THE NONEXCLUSIVE RIGHT, PRIVILEGE,
AUTHORITY AND FRANCHISE TO CONSTRUCT, OPERATE, MAINTAIN, REMOVE,
REPLACE, AND REPAIR EXISTING PIPELINE FACILITIES, TOGETHER WITH
EQUIPMENT AND APPURTENANCES THERETO, FOR THE TRANSPORTATION OF
PETROLEUM PRODUCTS AND BYPRODUCTS WITHIN AND THROUGH THE
FRANCHISE AREA.
WHEREAS, Trans Mountain Pipeline (Puget Sound) LLC (hereinafter "Grantee") has
applied for a multi -year franchise; and
WHEREAS, RCW 36.55.010, Whatcom County Charter Section 9.30, and Whatcom
County Code Chapter 12.24 address the requirements pertaining to the granting of franchises by
the County; and
WHEREAS, the Grantee desires a non-exclusive franchise to construct, operate,
maintain, remove, replace and repair existing pipeline facilities, together with equipment and
appurtenances thereto, for the transportation of petroleum products and byproducts within and
through the Franchise Area; and
WHEREAS, said application has come on regularly to be heard by the County Council
on the 20tnday of April , 2021, and notice of this hearing having been duly published on
the 4tn day of April , 2021, and the iltn day of April 2021, in the Bellingham
Herald, a daily newspaper published in Whatcom County having county -wide circulation; and
WHEREAS, it appears to the Council that notice of said application and hearing thereon
has been given as required by law in RCW 36.55.040; and
WHEREAS, this Council finds, after having considered said application and being
otherwise fully advised in the premises, that it is in the public interest for this Council to grant
the franchise for a period of up to twenty-five (25) years; and
WHEREAS, Whatcom County and Grantee intend that the previous franchises granted to
Grantee that pertain to pipelines for the transportation of petroleum projects and byproducts shall
be terminated and be replaced by this Franchise;
NOW, THEREFORE, BE IT ORDAINED by the Whatcom County Council that the
language set forth herein below, Sections 1 through 20, shall constitute the franchise agreement
between Whatcom County and Grantee, which shall be and become effective as set forth in
Section 20 thereof:
Section 1. Definitions.
For the purposes of this Franchise and all exhibits attached hereto, the following terms, phrases,
words and their derivations shall have the meaning given herein. When not inconsistent with the
context, words used in the present tense include the future, words in the plural include the
singular, and words in the singular include the plural. Words not defined shall be given their
common and ordinary meaning.
1.1 Construct or Construction shall mean removing, replacing, and repairing Facilities and
may include, but is not limited to, digging and/or excavating for the purposes of removing,
replacing, and repairing Facilities.
1.2 County means the County of Whatcom, a political subdivision of the State of
Washington, and its successors and assigns.
1.3 Effective Date shall mean the date designated herein, after passage, approval and legal
publication of this Ordinance and acceptance by Grantee, upon which the rights, duties and
obligations shall come into effect and the date from which the time requirement for any notice,
extension and/or renewal will be measured.
1.4 Facilities shall mean the Grantee's existing pipeline system including, without limitation,
all pipelines, valves, mains, markers, cathodic protection systems, test caps and appurtenances
used to transport or distribute Grantee's petroleum products(s).
1.5 Franchise shall mean this Franchise and any amendments, exhibits, or appendices to this
Franchise.
1.6 Franchise Area means the public roads, streets, avenues, alleys, highways, grounds, and
other public places of the County as described in Exhibit A.
1.7 Hazardous Substance shall mean any hazardous, toxic, or dangerous substance, material,
waste, pollutant, or contaminant. The term specifically includes petroleum and petroleum
products and their by-products, residue, and remainder in whatever form or state. The term shall
also be interpreted to include any substance which, after release into the environment, will or
may reasonably be anticipated to cause death, disease, injury, illness, behavior abnormalities or,
genetic abnormalities.
1.8 Maintenance or Maintain shall mean examining, testing, inspecting, repairing,
maintaining and replacing the Facilities or any part thereof as required or as necessary for safe
operation.
1.9 Pipeline Corridor shall mean the pipeline pathway through the Franchise Area in which
the Facilities of the Grantee are located, including any Rights -of -Way, Public Property, and/or
easement over and through private property.
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1.10 Public Properties shall mean the present and/or future property owned or leased by
Grantor .
1.11 Operate or Operation shall mean the use of Grantee's Facilities for the transportation,
distribution and handling of petroleum products or byproducts within and through the Franchise
Area.
1.12 Rights -of -Way shall mean the surface and the space above and below streets, roadways,
highways, avenues, courts, lanes, alleys, sidewalks, easements, rights -of -way, parks and similar
Public Properties located within the Franchise Area.
1.13 Encroachment shall mean any third party activity within the Pipeline Corridor which is
not authorized by Grantee.
1.14 Crossing shall mean any third party activity within the Pipeline Corridor which is
authorized by Grantee, whether or not Grantee's facilities are actually crossed or bisected.
Section 2. Grant of Authority.
2.1 Grantor hereby grants to Grantee, a limited liability company organized and existing
under and by virtue of the laws of the State of Delaware, and which is authorized to transact
business within the State of Washington, its successors and assigns (as provided in Section 4),
the right, privilege, authority and Franchise to Construct, Operate and Maintain its Facilities
necessary for the transportation, distribution and handling of any petroleum product or byproduct
thereof, within the existing Pipeline Corridor passing through the Franchise Area.
2.2 This Franchise is non-exclusive. Grantor reserves all rights to its property, including,
without limitation, the right to grant additional franchises, easements, licenses and permits to
others, provided that the Grantor shall not grant any other franchise, license, easement or permit
that would unreasonably interfere with or materially increase risk of Grantee's permitted use
under this Franchise. This Franchise shall in no manner prohibit the Grantor or limit its power to
perform work upon its Rights -of -Way, Public Properties or make all necessary changes,
relocations, repairs, maintenance, establishment, improvement thereto, or from using any of the
Rights -of -Way and Public Properties, or any part of them, as the Grantor may deem fit from time
to time including the dedication, establishment, maintenance and improvement of all new Rights -
of -Way and other Public Properties of every type and description.
2.3 This Franchise is conditioned upon the terms and conditions contained herein, Whatcom
County Charter Section 9.30, and Whatcom County Code Chapter 12.24, and Grantee's
compliance with all applicable federal, state or other regulatory requirements that currently exist
or may hereafter be enacted by any regulatory agencies with jurisdiction over the Grantee.
2.4 By granting this Franchise, the Grantor is not assuming any risks or liabilities, which
shall be solely and separately borne by Grantee. Grantee agrees and covenants to, at its sole cost
and expense, take all necessary and prudent steps to protect, support, and keep safe from harm its
Facilities, or any part thereof, when necessary to protect the public health and safety.
2.5 This Franchise is intended to convey only a limited right and interest. It is not a warranty
of title or interest in Grantor's Rights -of -Way or other Public Property. None of the rights
granted herein shall affect the Grantor's jurisdiction over its property, streets or Rights -of -Way.
2.6 This Franchise does not and shall not convey any right to Grantee to install its Facilities
on, under, over, across, or to otherwise use County owned or leased properties of any kind, either
within or outside Pipeline Corridor, other than existing Rights -of -Way.
2.7 The limited rights and privileges granted under this Franchise shall not convey any right
to Grantee to install any new pipeline(s) and/or Facilities without the express written consent of
Grantor.
Section 3. Term.
3.1 This Franchise is and shall remain in full force and effect for a period of twenty five (25)
years from and after the effective date of the Ordinance; provided, however, Grantee shall have
no rights under this Franchise nor shall Grantee be bound by the terms and conditions of this
Franchise unless Grantee shall, within thirty (30) days after the effective date of the Ordinance,
file with the County its written acceptance of the franchise agreement contained within the
Ordinance.
3.2 No franchise hereunder shall become effective for any purpose unless and until written
acceptance therefore shall have been filed with the Whatcom County Council and County
Director of Public Works and such written acceptance shall be in the form and substance as shall
be prescribed and approved by the County Prosecuting Attorney and operate as an acceptance of
each and every term and condition and limitation contained in this ordinance, and in such
franchise; and
3.3 Such written acceptance shall be filed by Grantee not later than the thirtieth (30th) day
following the effective date of the Ordinance granting such franchise; and in default of the filing
of such written acceptance as herein required, Grantee shall be deemed to have rejected the
same. In case of Grantee's tardy acceptance of franchise, the County's recognition thereof shall
be strictly at its discretion.
Section 4. Assignment and Transfer of Franchise; Transfer of Control.
4.1 Per Whatcom County Code Chapter 12.24, this Franchise shall not be leased, assigned or
otherwise alienated without the express consent of the Grantor by ordinance, which approval
shall not be unreasonably withheld.
4.2 No transfer shall be approved unless the assignee or transferee has at least the legal,
technical, financial, and other requisite qualifications to carry on the activities of the Grantee.
4.2.1 Grantee and any proposed assignee or transferee shall provide to the County not less than
120 days prior to the proposed date of transfer (a) information setting forth the nature of the
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proposed assignment or transfer; and, (b) such reasonable information regarding the proposed
assignee or transferee (including that information required of a franchise of a franchise applicant
under Whatcom County Code Chapter 12.24 to enable the County to adequately assess the legal,
technical, financial and other relevant qualifications of the assignee or transferee.
4.2.2 Grantee and/or the assignee or transferee will reimburse the County for its actual and
reasonably incurred costs for processing and investigating the proposed assigmment or transfer.
4.3 Any transfer or assignment of this Franchise without the prior written consent of the
County shall be void and result in revocation of the Franchise.
4.4 If Grantee intends to enter into a transaction that would result in a change of the
operational control of Grantee, Grantee will notify the County in writing and provide at least 90
days for the County to provide Grantee with written comments and issues of concern the County
may have with the proposed transfer of control. Grantee agrees to provide a written response to
the County's comments within 60 days of receiving the County's comments.
Section 5. Compliance with Laws and Standards.
5.1 In carrying out any authorized activities under the privileges granted herein, Grantee shall
meet accepted industry standards and comply with all applicable laws of any governmental entity
with jurisdiction over the pipeline and its operation. This shall include all applicable laws, rules
and regulations existing at the Effective Date of this Franchise or that may be subsequently
enacted by any governmental entity with jurisdiction over Grantee and/or the pipeline(s) and
Facilities.
5.2 In the case of any conflict between the terms of this Franchise and the terms of Grantor's
ordinances, codes, regulations, standards and procedures, this Franchise shall govern.
Section 6. Construction and Maintenance.
6.1 All Construction, Maintenance, and Installation Work within the Franchise Area shall be
subject to the approval and pass the inspection of the County Engineer, and shall conform to all
applicable local, state and federal standards, codes or regulations. The County expressly reserves
the right to prescribe standards as to how and where Facilities shall be installed, provided
however, that such County standards shall be consistent with standard engineering practices in
the applicable industry and shall not conflict with any applicable federal or state laws, rules,
standards, codes or regulations.
6.2 Prior to commencement of construction of any new Facilities, Grantee shall first file with
the Whatcom County Engineer its application for permits to do such work, together with plans
and specifications in duplicate showing the position and location of all such Facilities sought to
be constructed, laid, installed or erected at that time showing their position relative to existing
County roads, rights -of -way, or other County property within the Franchise Area upon plans
drawn to scale. The Facilities shall be laid in conformity with said plans and specifications of
definite location, except in instances in which deviation may be allowed thereafter in writing by
the County Engineer. The plans and specifications shall specify the class and type of material
and equipment to be used, manner of excavation, construction, installation, backfill, erection of
temporary structures, erection of permanent structures, traffic control, traffic turnouts and road
obstructions, etc. No such construction shall be commenced without Grantee first securing a
written permit from the County Engineer, including approval endorsed on one set of plans and
specifications returned to Grantee. All such work shall be subject to the approval of and shall
pass the inspection of the County Engineer. Grantee shall pay all costs of and expenses incurred
in the examination, inspection and approval of such work on account of granting the said
permits.
6.3 Unless such condition or regulation is in conflict with a federal requirement, the Grantor
may condition the granting of any permit or other approval that is required under this Franchise,
in any manner reasonably necessary for the safe use and management of any public Right -of -
Way or the Grantor's property including, by way of example and not limitation, bonding,
maintaining proper distance from other utilities, protecting the continuity of pedestrian and
vehicular traffic and protecting any Rights -of -Way improvements, private facilities and public
safety.
6.3 In preparing plans and specifications for the installation of Facilities within the Franchise
Area, Grantee shall reasonably conform to the standards and specifications established by the
County Engineer. Grantee shall consult with the County Engineer in case it plans to deviate
from the established standards and specifications in the course of installing Facilities within the
Franchise Area and must demonstrate to the satisfaction of the County Engineer that its plans
will achieve a legal and functionally equivalent result.
6.4 All Construction and/or Maintenance work shall be performed in substantial conformity
with the plans, maps, specifications filed with the Grantor, except in instances in which deviation
may be allowed thereafter in writing pursuant to an application by the Grantee.
6.5 In any work which requires breaking of soil within the Franchise Area for the purpose of
laying, relaying, connecting, disconnecting, constructing, maintaining and repairing Grantee's
Facilities, and malting connections between the same to structures and buildings of consumers or
malting connections to other Facilities now in existence or hereafter constructed, Grantee shall be
governed by and conform to the general rules adopted by the County Engineer; and Grantee at its
own expense and with due diligence shall complete the work for which the soil has been broken
and forthwith replace the work and make good the Franchise Area and leave the same in as good
condition as before the work was commenced; provided, however, that no such breaking of the
soil within the Franchise Area shall be done prior to the obtaining of a permit issued by the
County Engineer except in the event of an emergency. Applications for such a permit shall be
accompanied by specifications for the restoration of the Franchise Area to the same condition as
it was in prior to such breaking, and such specifications must be approved by the County
Engineer before such breaking of the soil is commenced; provided further, that the County
Engineer may require a performance bond in a reasonable sum sufficient to guarantee that such
Franchise Area shall be restored to the same condition as it was in prior to such breaking of the
soil, the amount of said bond to be fixed by the County Engineer. Grantee shall pay all costs of
and expenses incurred in the examination, inspection and approval of such restoration. The
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County Engineer may at any time do, order, or have done, any and all work that the County
Engineer considers necessary to restore to a safe condition any Franchise Area left by Grantee or
its agents in a condition dangerous to life or property, and Grantee upon demand shall pay to the
County all costs of such work, the County having first provided notice of such condition to
Grantee and a reasonable time to cure such unsafe condition, provided however, in the event of
damage to the Franchise Area caused by Grantee that necessitates immediate repair by the
County or its agents on an emergency basis where notice to Grantee or providing an opportunity
to cure is not feasible considering nature of the emergency and necessary repair, as determined
by the County Engineer using professional engineering standards, no such notice and reasonable
time to cure shall be required as a condition of repayment by the Grantee.
6.6 All work done by and for Grantee under this Franchise shall be done in a thorough and
workmanlike manner. In the Construction and/or Maintenance of Facilities and the opening of
trenches within and the tunneling under the Franchise Area, Grantee shall leave such trenches
and tunnels in such a way as to interfere as little as possible with public travel, and shall take all
due and necessary precautions to guard the same, so that damage or injury shall not occur or
arise by reason of such work. Where any of such trenches, ditches, or tunnels are left open at
night, Grantee shall place warning lights and barricades at such a position as to give adequate
warning of such work, per the MUTCD (Manual on Uniform Traffic Control Devices). Grantee
shall be liable for any injury to person or persons or damage to property to the extent
proximately caused by its carelessness or neglect, or to the extent proximately caused by any
failure or neglect to properly guard or give warning of any trenches, ditches or tunnels dug or
maintained by Grantee.
6.7 Before any Construction and/or Maintenance work is performed under this Franchise
which may affect any existing monuments or markers of any nature relating to subdivisions,
plats, roads and all other surveys, Grantee shall reference all such monuments and markers. The
reference points shall be so located that they will not be disturbed during Grantees operations
under this Franchise. The method of referencing these monuments or other points to be
referenced shall be approved by the County Engineer. The replacement of all such monuments
or markers disturbed during construction shall be made as expeditiously as conditions permit,
and as directed by the County Engineer. The cost of monuments or other markers lost,
destroyed, or disturbed, and the expense of replacement by approved monuments shall be borne
by Grantee. A complete set of reference notes for monuments and other ties shall be filed with
the County Engineer's Office.
6.8 Grantee shall continuously be a member of the State of Washington one number locator
service under RCW 19.122, or an approved equivalent, and shall comply with all such applicable
rules and regulations. In addition to the notice to Grantor required under Section 6.2, Grantee
shall provide reasonable notice prior to commencing any Maintenance or Construction under this
Franchise to those owners or other persons in control of property in the Franchise Area when the
Maintenance or Construction will affect access or otherwise materially impact the property.
6.9 Markers demarcating the Pipeline Corridor shall be placed on the surface permitting line
of sight at any location on the pipeline Right -of -Way and in each side of any road or water
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crossing so as to provide clear warning of the presence of the pipeline but in a manner that does
not interfere with trials or other public uses in that area.
6.10 Upon acceptance of this Franchise by Grantee, the Grantee shall file and thereafter
maintain at all times with the Grantor any survey, maps or roll drawings in its possession
depicting the location of the Pipeline Corridor within the Franchise Area as well as the
approximate location of Grantee's Facilities within the Pipeline Corridor along with all other
known utilities, landmarks, and physical features. When the city or third parties are engaged in
work in the Pipeline Corridor, or within fifty (50) feet of the Pipeline Corridor, Grantee shall
within two (2) business days respond to requests to surface locate and mark the position of its
Facilities. If the project is a Whatcom County project, Grantee shall bear any costs associated
with locating its Facilities, otherwise the cost shall be borne by the party making the request. In
situations where the work in the Pipeline Corridor requires that the depths of the pipeline be
accurately known as determined by Grantee, prior to work commencing, Grantee shall pothole or
take other action as Grantee deems necessary to ascertain the depth and exact location of the
pipeline in the area of the work.
6.11 Nothing in this Franchise shall be deemed to impose any duty or obligation upon Grantor
to determine the adequacy or sufficiency of Grantee's plans and designs or to ascertain whether
Grantee's proposed or actual construction, testing, maintenance, repairs, replacement or removal
is adequate or sufficient or in conformance with the plans and specifications reviewed by
Grantor.
6.12 Grantee shall be solely and completely responsible for workplace safety and safe working
practices on its job sites within the Franchise area, including safety of all persons and property
during the performance of any work.
Section 7. Noninterference of Facilities.
7.1 As to new Facilities, Grantee's Facilities shall be placed and maintained within the
Franchise Area so as not to unreasonably interfere with the free passage of traffic and in
accordance with all applicable laws, rules, and regulations. Prior to the installation of new
Facilities within the Franchise Area, Grantee may request that the County determine whether the
proposed placement of the Facilities will unreasonably interfere with the free and safe passage of
traffic, and the County shall make such determination in writing within a reasonable period of
time. If the proposed location is not approved by the County Engineer, the County Engineer shall
advise in writing what reasonable modifications to the proposed location of the Facilities are
necessary for the County Engineer to issue a determination that the proposed location of the
Facilities will not unreasonably interfere with the free and safe passage of traffic.
7.2 Grantee's existing Facilities shall be maintained within the Franchise Area so as not to
unreasonably interfere with the free passage of traffic and in accordance with all applicable laws,
rules, and regulations. Except as provided in Section 6 below, upon determination by the County
that current placement of particular Facilities unreasonably interferes with free or safe passage of
traffic, the County shall notify Grantee which shall, at its own expense, act promptly to rectify
the problem in consultation with the County. Grantee shall exercise its rights under this
Franchise and within the Franchise Area in accordance with all County codes and ordinances
governing use and occupancy of the Franchise Area; provided, however, in the event of any
conflict or inconsistency of such codes and ordinances with the terms and conditions of this
Franchise, the terms and conditions of this Franchise shall govern and control to the extent
authorized by law; provided, further, nothing herein shall be deemed to waive, prejudice or
otherwise limit any right of appeal afforded Grantee by such County codes and ordinances.
7.3 All construction or installation of such Facilities, service, repair, or relocation of the
same, performed over, above, along or under the Franchise Area shall be done in such a manner
as not to interfere unreasonably with the construction and maintenance of other existing utilities,
lines, public or private, drains, drainage ditches and structures, irrigation ditches and structures,
located therein, nor with the grading or improvement of the Franchise Area. The owners of all
utilities, public or private, installed in the Franchise Area prior in time to the Facilities of Grantee
shall have preference as to the positioning and location of such utilities so installed with respect
to Grantee. Such preference shall continue in the event of the necessity of relocating or changing
the grade of the Franchise Area. Grantee shall have such preference as to owners of all utilities,
public or private, initially installed in the Franchise Area subsequent in time to Grantee's
Facilities. Notwithstanding any such preference, the County will attempt to work with the
Grantee and other utility owners to develop a plan for the relocation of utilities in a practical,
safe and cost-effective manner.
7.4 The locating, laying, construction, operation and maintenance of Grantee's Facilities
authorized by this Franchise shall not preclude the County, its agents or its contractors from
blasting, grading, excavating, or doing other necessary road work contiguous to Grantee's
Facilities, provided that Grantee and the County shall first check with Washington 811 to
determine whether or not any of Grantee's lines are located in the proposed work area. Upon
finding from Washington 811 that Grantee does have lines located within the proposed work
area, the County shall provide Grantee with seventy-two (72) hours notice of proposed work,
except if a lesser time for notice is warranted by emergency, in order that the Grantee may
protect its Facilities. Failure of Grantee to properly notify the locator service of the location of
its lines and Facilities shall relieve County of its duty to provide Grantee the otherwise -required
advance notice of proposed work. The County acknowledges that the Facilities include a
pressurized pipe line for the transmission of petroleum products. As such, the County
acknowledges that any work in, around or near such Facilities require the exercise of reasonable
standard professional engineering and construction caution and practices in, around or near such
Facilities. Accordingly, the County acknowledges that upon receipt of notice of the location of
such Facilities the County shall undertake all reasonable standard professional engineering and
construction caution practices and/or requirements when conducting or permitting any work in,
around or near such Facilities.
7.5 Grantee shall maintain all above -ground Facilities that it places in the Franchise Area. In
order to avoid interference with the County's ability to maintain the Franchise Area, Grantee
shall provide a clear zone of five (5) feet on all sides of such above -ground Facilities. If Grantee
fails to comply with this provision, and by its failure, property is damaged, then Grantee shall be
deemed responsible for all damages caused thereby and the County shall be released from any
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responsibility therefore. For these purposes, "clear zone" means an area that is mowed or
otherwise maintained so that the Facilities are readily visible to County maintenance operations.
Section 8. Operations, Maintenance, Inspection, Testing.
8.1 Grantee shall operate, maintain, inspect and test its Facilities in the Franchise Area in full
compliance with the applicable provisions of all federal, state and local laws, regulations and
standards, as now enacted or hereafter amended, and any other future laws or regulations that are
applicable to Grantee's Facilities, products and business operations.
8.2 If the federal office of pipeline safety or the state regulatory agency significantly decrease
their staff, or if any congressional or legislative study indicates that federal or state regulatory
oversight has significantly decreased in effectiveness during the term of this Franchise, then
Grantee and Grantor agree to expeditiously negotiate new franchise provisions that will provide
Grantor with access to detailed information regarding testing and inspection such as would have
been routinely submitted to the federal or state regulatory agencies under the regulations in effect
at the time of the Effective Date. Grantee agrees to cover all costs reasonably incurred by
Grantor for expert assistance in interpreting the testing and inspection data. If Grantor and
Grantee fail to agree upon new franchise provisions, the issues shall be resolved through the
Dispute Resolution provisions of Section 13.
Section 9. Encroachment and Crossing Management.
9.1 Within ninety (90) days of entering into this Franchise, and on an annual basis thereafter,
Grantee shall provide a written Encroachment and Crossing management plan that demonstrates
how Grantee's Facilities are and will be protected against Encroachments and Crossings. This
plan shall include at least the following: 1) education and one -call involvement as defined in
Federal Regulations; 2) and Encroachment management processes demonstrating: a) Grantee's
process for monitoring unauthorized activity in or near the Pipeline Corridor; b) Grantee's field
verification of the location of Facilities within the Pipeline Corridor; c) Grantee's Encroachment
tracking system; d) control center notification of existing or active encroachments; and e)
assertive protection of the pipeline Rights -of -Way and; 3) Grantee's process for approving
Crossings, and its policies and procedures with respect thereto.
9.2 Upon notification to Grantee of planned construction involving excavation or any activity
that could abnormally load the pipeline, by either Grantor or any third party, within fifty (50) feet
of Grantee's Pipeline Corridor, Grantee shall flag the location of its Facilities before the
construction or activity commences, provide a representative to inspect the construction when it
commences, and periodically inspect thereafter to ensure that Grantee's Pipeline is not damaged
by the construction or activity. In situations where the work in the Pipeline Corridor requires
that the depth of the pipeline be accurately known as determined by Grantee, prior to work
commencing, Grantee shall pothole or take other action as Grantee deems necessary to ascertain
the depth and exact location of the pipeline in the area of the work.
9.3 Upon Grantor's Reasonable request, in connection with the design of any County project,
Grantee will verify the exact location of its underground Facilities within the Pipeline Corridor
!H1
by excavating (pot holing) at no expense to Grantor. In the event Grantee performs such
excavation, Grantor shall not require any restoration of the disturbed area in excess of restoration
to the same conditions as existed immediately prior to the excavation.
Section 10. Leaks, Spills, Ruptures and Emergency Response.
10.1 Grantee shall have in place, at all times during the term of this Franchise, a system for
remotely monitoring pressures and flows across the Franchise Area. The remote monitoring
must be able to accurately detect pipeline ruptures.
10.2 During the term of this Franchise, Grantee shall have a written emergency response plan
and procedure for locating leaks, spills, and ruptures and for shutting down valves as rapidly as
possible.
10.3 Grantee has provided Grantor with a copy of its state approved emergency response plans
and procedures, including but not limited to, emergency response for spills or leaks. Grantee
will provide Grantor an updated copy of its emergency response plans and procedures after they
are adopted and approved.
10.4 Grantee's emergency plans and procedures shall designate Grantee's responsible local
emergency response officials and a direct 24-hour emergency contact number for control center
operator. Grantee shall, after being notified of an emergency, cooperate with the Grantor and
make every effort to respond as soon as possible to protect the public's health, safety and
welfare.
10.5 Upon prior written request of Grantor, Grantee agrees to meet annually to review its
emergency response plans and procedures.
10.6 Grantee shall be solely responsible for all necessary costs incurred by city, county,
special district or state agencies in responding to any rupture, spill, or leak from Grantee'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 Grantees rights or
causes of action against any third party or parties who may be responsible for a leak, spill or
other release of hazardous liquid from Grantees pipeline, including such third party's insurers.
10.7 In addition to the notification requirements in the emergency response plan, Grantee shall
notify Grantor 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 totaling one (1)
barrel or more within one (1) business day of its observation or detection.
10.8 If requested by Grantor in writing, Grantee shall follow-up this notice within thirty (30)
days with a written summary of the event, including, but not limited to, the leak, spill, or
rupture's date, time, amount, location, response, remediation and other agencies Grantee has
notified.
10.9 In the event of an uncontained leak, spill or rupture from Grantee's pipeline(s) and/or
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, the Grantor may
demand that the occurrence be investigated by an independent pipeline consultant selected by
Grantor. Grantee shall be solely responsible fro paying all of the consultant's costs and expenses
incurred in investigating the occurrence and reporting the findings. Grantee shall meet and
confer with the independent consultant following the consultant's investigation to address
whether any modifications or additions to Grantee's pipeline(s) and/or Facilities may be
warranted. In cases where federal or state regulators do perform an investigation, Grantee agrees
to share the results of that investigation with the County within sixty (60) days from receipt of
the same.
10.10 If the consultant recommends that Grantee make modifications or additions to Grantee's
Facilities, Grantee covenants to consider said recommendations in good faith. If Grantee declines
to follow the consultant's recommendations, Grantee shall provide a written report to the Grantor
explaining its reasoning for not following said recommendations. The parties agree to comply
with the dispute resolution provisions contained herein to resolve any dispute over whether to
follow the consultant's recommendations.
Section 11. Relocation.
11.1 In the event that Grantor undertakes or approves the construction of or changes to the
grade or location of any water, sewer or storm drainage line, street, sidewalk or improvement
project or any governmental agency or any person or entity acting in a governmental capacity, or
on the behalf of, under the authority of, or at the request of the Grantor or any other
governmental agency, undertakes any improvement project and the Grantor determines that the
project might reasonably require the relocation of Grantee's Facilities, Grantor shall provide the
Grantee at least one hundred and twenty (120) calendar days prior written notice or such
additional time as may reasonably be required, of such project requiring relocation of Grantee's
Facilities.
11.2 Grantor shall provide Grantee with copies of pertinent portions of the plans and
specifications for the improvement project. Upon request, Grantee shall, at its cost and expense,
determine and identify for Grantor the exact location of its Facilities potentially affected by the
improvement project.
11.3 Grantee may, after receipt of written notice requesting a relocation of its Facilities,
submit to Grantor written alternatives to the relocation within forty five (45) calendar days of
receiving the plans and specifications. Grantor shall evaluate the alternatives and advise Grantee
in writing if one or more of the alternatives are suitable to accommodate the work that would
otherwise necessitate relocation of the Facilities. If requested by Grantor, Grantee shall submit
additional information to assist Grantor in making the evaluation. Grantor shall give each
alternative proposed by Grantee full and fair consideration but retains full discretion to decide for
itself whether to utilize its original plan or an alternative proposed by Grantee. In the event
Grantor ultimately determines that there is no other reasonable alternative, Grantee shall relocate
its Facilities as proposed by Grantor.
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11.4 If any improvement project under Section 11.1 is required in the interest of public health,
safety, welfare, necessity or convenience, as adjudged in the sole discretion of the Grantor acting
reasonably, the Grantee shall make such changes as required herein at Grantee's sole cost,
expense and risk.
11.5 Grantor shall work cooperatively with Grantee in determining a viable and practical route
within which Grantee may relocate its Facilities, in order to minimize costs while meeting
Grantor's project objectives.
11.6 Grantee shall complete relocation of its Facilities so as to accommodate the improvement
project at least ten (10) calendar days prior to commencement of the improvement project or
such other time as the parties may agree in writing.
Section 12. Decommissioning.
12.1 In the event of Grantee's permanent cessation of use of its Facilities within the Franchise
Area, the Grantee shall, within one hundred and eighty (180) days after receipt of written
notification from Grantor, remove the Facilities from Public Properties.
12.2 In the event of the removal of all or a portion of the Facilities, Grantee shall restore the
Public Properties to as good or better condition as they were in before the work began.
12.3 Removal and/or Decommissioning and restoration work shall be done at Grantee's sole
cost and expense in accordance with all applicable regulations and standards. Grantee shall be
responsible for any environmental review required fo removal and/or decommissioning of any
Facilities and the payment of any costs of the environmental review.
12.4 If Grantee is required to remove its Facilities and fails to do so and/or fails to adequately
restore the Public Properties or other mutually agreed upon action(s), Grantor may, after
reasonable notice to Grantee, remove the Facilities, restore the Public Properties and/or take
other action as is reasonably necessary at Grantee's expense. This remedy shall not be deemed
to be exclusive and shall not prevent Grantor from seeking a judicial order directing that the
Facilities be removed.
12.5 If permitted by applicable regulations and with the express written consent of the
Grantor, Grantee may purge its Facilities located on Public Properties and abandon them in
place. Grantee shall be responsible for any environmental review required for the abandonment
of any Facilities and the payment of any costs of such environmental review. Grantor's consent
to the abandonment of Facilities on Public Properties in place shall not relieve the Grantee of the
obligation and/or costs to remove or to alter such Facilities in the future in the event it is
reasonably determined that removal or alterations is necessary or advisable for the health and
safety of the public, in which case the Grantee shall perform such work at no cost to the Grantor.
This provision shall survive the expiration, revocation or termination of this Franchise.
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12.6 The parties expressly agree that this provision of this Section shall survive the expiration,
revocation or termination of this Franchise.
Section 13. Violations, Remedies and Termination.
13.1 In addition to any rights set out elsewhere in this Franchise, or other rights it may possess
at law or equity, the Grantor reserves the right to apply any of the following remedies, alone or in
combination, in the event Grantee violates any material provision of this Franchise. The
remedies provided for in this Franchise are cumulative and not exclusive; the exercise of one
remedy shall not prevent the exercise of another or any rights of the Grantor at law or equity.
13.2 Grantor may terminate this Franchise if Grantee materially breaches or otherwise fails to
perform, comply with or otherwise observe any of the terms and conditions of this Franchise, or
fails to maintain all required licenses and approvals from federal, state, and local jurisdictions,
and fails to cure such breach or default within thirty (30) calendar days of Grantor's providing
Grantee written notice thereof, 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.
13.3 This Franchise shall not be terminated except upon a majority vote of the full
membership of the County Council, after reasonable notice to Grantee 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 In the event of termination under this Franchise, Grantee shall immediately discontinue
operation of the Facilities within the Franchise Area. Either party may in such case invoke the
dispute resolution provisions herein. Alternatively, Grantor may elect to seek relief directly in
Superior Court, in which case the dispute resolution requirements shall not be applicable in this
limited situation. Once the Grantee's rights to Operate in the Franchise Area have terminated,
Grantee shall comply with Franchise provision regarding removal and/or abandonment of
Facilities.
13.5 Grantor's failure to exercise a particular remedy at any time shall not waive Grantor's
right to terminate, assess penalties, or assert any other remedy at law or equity for any future
breach or default of Grantee.
13.6 Termination of this Franchise shall not release Grantee from any liability or obligation
with respect to any matter occurring prior to such termination, nor shall such termination release
Grantee from any obligations to remove or secure the Facilities pursuant to this Franchise and to
restore the Franchise Area.
13.7 The parties acknowledge that the covenants set forth herein are essential to this
Franchise, and, but for the mutual agreements of the parties to 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, the
parties shall have the right, in addition to any other rights they may have, to obtain in any court
of competent jurisdiction injunctive relief to restrain any breach or threatened breach or
Ell
otherwise to specifically enforce any of the covenants contained herein should the other party fail
to perform them.
Section 14. Dispute Resolution.
14.1 In the event of a dispute between the Grantor and Grantee arising by reason of this
Franchise, the dispute shall first be referred to the operational officers or representatives
designated by Grantor and Grantee to have oversight over the administration of this Franchise.
The officers or representatives shall meet within thirty (30) calendar days of either party's
request for a meeting, whichever request is first, and the parties shall make a good faith effort to
attempt to achieve a resolution of the dispute.
14.2 In the event that the parties are unable to resolve the dispute under the procedure set forth
in this section, then the parties hereby agree that the matter shall be referred to mediation. The
parties shall mutually agree upon a mediator to assist them in resolving their differences. If the
parties are unable to agree upon a mediator, the parties shall jointly obtain a list of seven (7)
mediators from a reputable dispute resolution organization and alternate striking mediators on
that list until one remains. A coin toss shall determine who may strike the first name. If a party
fails to notify the other party of which mediator it has stricken within two (2) business days, the
other party shall have the option of selecting the mediator from those mediators remaining on the
list. Any expenses incidental to mediation shall be borne equally by the parties.
14.3 If the parties fail to achieve a resolution of the dispute through mediation, either party
may then pursue any available judicial remedies, provided that if the party seeking judicial
redress does not substantially prevail in the judicial action, it shall pay the other party's
reasonable legal fees and costs incurred in the judicial action.
Section 15. Indemnification.
15.1 General Indemnification. Except to the extent caused by the actions or omissions of
Grantor, its employees, agents, contractors and subcontractors ("Grantor's Actions"), Grantee
shall indemnify, defend and hold harmless Grantor from any and all liability, loss, damage, cost,
expense, and claim of any kind, including reasonable attorneys' and experts' fees incurred by
Grantor in defense thereof, arising out of a related to, directly or indirectly, the installation,
construction, operation, use, location, testing, repair, maintenance, removal, or abandonment of
Grantee's Facilities, or from the existence of Grantee's Facilities, and the products contained in,
transferred through, released or escaped from said 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 environmental laws. Except to the
extent caused by Grantor's Actions, if any action or proceeding is brought against Grantor by
reason of the Facilities, Grantee shall defend the Grantor at the Grantee's complete expense,
provided that, for uninsured actions or proceedings, defense attorneys shall be approved by
Grantor, which approval shall not be unreasonably withheld.
15.2 Environmental Indemnification. Except to the extent caused by Grantor's Actions,
Grantee shall indemnify, defend and save Grantor harmless 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 Grantor in defense thereof,
arising directly or indirectly from (a) Grantee's breach of any environmental laws applicable to
the Facilities or (b) from any release of a hazardous substance on or from the pipeline or (c) other
activity related to this Franchise by Grantee, its agents, contractors or subcontractors. This
indemnity includes but is not limited to (a) liability for a gove3rnmental agency's cost of
removal or remedial action for hazardous substances; (b) damages to natural resources caused by
hazardous substances, including the reasonable costs of assessing such damages; (c) liability for
any other person's costs of responding to hazardous substances; (d) liability for any costs of
investigation, abatement, correction, cleanup, fines, penalties, or other damages arising under
any environmental laws; and (e) liability for personal injury, property damage, or economic loss
arising under any statutory or common-law theory.
Section 16. Insurance and Bond Requirements.
16.1 During this Franchise, Grantee shall provide and maintain, at its own cost, insurance in
the minimum amount of ONE HUNDRED MILLION UNITED STATES DOLLARS
($100,000,000.00) in the aggregate, in a form and with a carrier reasonably acceptable to the
Grantor, naming Grantor as an additional insured and solely to the extent of Grantee's indemnity
obligations hereunder, to cover any and all insurable liability, damage, claims and loss to the
extent such coverage is reasonably available in the commercial marketplace, excepting at all
times liability for fines and penalties for violation of environmental laws and punitive damages.
Insurance coverage shall include, but is not limited to, defense costs. Such insurance shall
include, but is not limited to, pollution liability coverage, at a minimum covering liability from
sudden and accidental occurrences, subject to time element reporting requirements as is
reasonably available in the commercial marketplace.
16.2 In addition to the insurance requirements set forth herein in Paragraph 16.1, Grantee shall
also maintain commercial automobile liability insurance in an amount not less than TWO
MILLION U.S. DOLLARS ($2,000,000.00) per occurrence, covering bodily injury, death, and
property damage.
16.3 Proof of insurance naming Grantor as an additional insured, including any endorsement
that may be required, shall be provided to the Grantor prior to the beginning of any substantial
work, testing or construction or reconstruction on the Pipeline. Said insurance shall contain a
provision that it shall not be canceled without a minimum of thirty (30)days prior written notice
to the Grantor.
16.4 The indemnity and insurance provisions contained herein shall survive the termination of
this Franchise and shall continue for as long as the Grantee's Facilities shall remain in use on
Public Properties or until the parties execute a new Franchise Agreement which modifies or
terminates these indemnity and insurance provisions.
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Section 17. Receivership and Foreclosure.
17.1 Grantee shall immediately notify the Grantor in writing if it: files a voluntary petition in
bankruptcy, a voluntary petition to reorganize its business, or a voluntary petition to effect a plan
or other arrangement with creditors; files an answer admitting the jurisdiction of the Court and
the material allegations of an involuntary petition filed pursuant to the Bankruptcy Code, as
amended; or is adjudicated bankrupt, makes an assignment for the benefit of creditors, or applies
for or consents to the appointment of any receiver or trustee of all or any part of its property
including all or any parts of its business operations, pipeline(s) or Facilities within or affecting
the Franchise Area.
17.2 Upon the foreclosure or other judicial sale of all or a substantial part of Grantee's
business operations, or Facilities within or affecting the Franchise Area, or upon the termination
of any lease covering all or a substantial part of the Facilities within or affecting the Franchise
Area, or upon the occasion of additional events which effectively cause termination of Grantee's
rights or ability to operate the Facilities within or affecting the Franchise Area, Grantee shall
notify the Grantor of such fact, and such notification or the occurrence of such terminating
events shall be treated as a notification that a change in control of the Grantee has taken place,
and the provisions of this Franchise Agreement governing the consent of the Grantor to such
change in control of the Grantee shall apply.
17.3 The Grantor shall have the right to cancel this Franchise one hundred twenty (120) days
after the appointment of a receiver or trustee to take over and conduct the business of a Grantee,
whether in receivership, reorganization, bankruptcy, or other action or proceeding, unless such
receivership or trusteeship shall have been vacated prior to the expiration of said one hundred
twenty (120) days, or unless: a) Within one hundred twenty (120) days after the election or
appointment, such receiver or trustee shall have fully complied with all of the provisions of this
Franchise Agreement and remedied any existing violations and/or defaults; and b) Within said
one hundred twenty (120) days, such receiver or trustee shall have executed an agreement, duly
approved by the court having jurisdiction, whereby such receiver or trustee assumes and agrees
to be bound by each and every provision of this Franchise Agreement granted to the Grantee
except where expressly prohibited by Washington law.
Section 18. Franchise Fee and Costs.
18.1 In consideration for granting this Franchise and for the use of the Public Properties in the
Franchise Area, there is hereby established an annual fee equal to Twenty Five Thousand and
00/100 Dollars ($25,000.00). The parties agree that the foregoing fee is proportional to the
municipal services provided.
18.2 The first annual payment shall be paid at the time Grantee accepts this Franchise and
shall cover the next twelve (12) months. Each succeeding installment shall cover the next twelve
(12) month period and shall be paid not later than the anniversary date of the Effective Date of
this Franchise.
18.3 Interest shall accrue on any late payment at the rate of twelve percent (12%) per annum.
The annual fee shall remain constant for the first three (3) years of this Franchise and shall then
subsequently increase at a rate of one and a half percent (1 1/2 %) every year thereafter
beginning with year four (4) for the Franchise's remaining term.
18.4 Grantee agrees to pay a fee or a charge so that Grantor recovers its actual, reasonable,
administrative expenses directly related to preparing and approving this Franchise. Nothing
herein shall preclude Grantor from charging administrative fees or recovering administrative
costs incurred by Grantor in the approval of permits or in the reasonable supervision, inspection
or examination of all work by Grantee in the Franchise Area to ensure compliance with the terms
of this Franchise and the applicable permits, as required by the applicable provisions of
Grantor's municipal code.
Section 19. Legal Relations.
19.1 Nothing contained in this Franchise shall be construed to create an association, trust,
partnership, agency relationship, or joint venture or to impose a trust, partnership, or agency
duty, obligation or liability on or with regard to any party. Each party shall be individually and
severally liable for its own duties, obligations, and liabilities under this Franchise.
19.2 Grantee accepts any privileges granted by Grantor to the Franchise Area, public Rights -
of -Way and other Public Property in an "as is" condition. Grantee agrees that Grantor has never
made any representations, implied or express warranties or guarantees as to the suitability,
security or safety of Grantee's location of facilities or the facilities themselves in Public Property
or Rights -of -Way or possible hazards or dangers arising from other uses of the public Rights -of -
Way or other Public Property by Grantor or the general public. Grantee shall remain solely and
separately liable for the function, testing, maintenance, replacement and/or repair of the pipeline
or other activities permitted under this Franchise.
19.3 Grantee waives immunity under Title 51 RCW in any cases involving the Grantor and
affirms that the Grantor and Grantee have specifically negotiated this provision, to the extent it
may apply.
19.4 This Franchise shall not create any duty of Grantor or any of its officials, employees or
agents and no liability shall arise from any action or failure to act by Grantor or any of its
officials, employees or agents in the exercise of powers reserved to the Grantor. Further, this
ordinance is not intended to acknowledge, create, imply or expand any duty or liability of the
Grantor 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 Grantor shall be deemed a duty to the general
public and not to any specific party, group or entity.
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19.5 This Franchise shall be governed by, and construed in accordance with, the laws of the
State of Washington and the parties agree that in any action, except actions based on federal
questions, venue shall lie exclusively in Whatcom County, Washington.
Section 20. Miscellaneous.
20.1 In the event that a court or agency of competent jurisdiction declares a material provision
of this Franchise to be invalid, illegal or unenforceable, the parties shall negotiate in good faith
and agree, to the maximum extent practicable in light of such determination, to such amendments
or modifications as are appropriate actions so as to give effect to the intentions of the parties as
reflected herein. If severance from this Franchise of the particular provision(s) determined to be
invalid, illegal or unenforceable will fundamentally impair the value of this Franchise, either
party may apply to a court of competent jurisdiction to reform or reconstitute the Franchise so as
to recapture the original intent of said particular provision(s). All other provisions of the
Franchise shall remain in effect at all times during which negotiations or a judicial action
remains pending.
20.2 Whenever this Franchise sets forth a time for any act to be performed, such time shall be
deemed to be the essence, and any failure to perform within the allotted time may be considered
a material violation of this Franchise.
20.3 In the event that Grantee is prevented or delayed in the performance of any of its
obligations under this Franchise by reason(s) beyond the reasonable control of Grantee, then
Grantee's performance shall be excused during the Force Majeure occurrence. Upon removal or
termination of the Force Majeure occurrence the Grantee shall promptly perform the affected
obligations in an orderly and expedited manner under this Franchise or procure a substitute for
such obligation or performance that is satisfactory to Grantor. Grantee shall not be excused by
mere economic hardship nor by misfeasance or malfeasance of its directors, officers or
employees.
20.4 The Section headings in this Franchise are for convenience only, and do not purport to
and shall not be deemed to define, limit, or extend the scope or intent of the Section to which
they pertain.
20.5 By entering into this Franchise, the parties expressly do not intend to create any
obligation or liability, or promise any performance to, any third party, nor have the parties
created for any third party any right to enforce this Franchise.
20.6 This Franchise and all of the terms and provisions shall be binding upon and inure to the
benefit of the respective successors and assignees of the parties.
20.7 Whenever this Franchise calls for notice to or notification by any party, the same (unless
otherwise specifically provided) shall be in writing and directed to the recipient at the address set
forth in this Section, unless written notice of change of address is provided to the other party. If
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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.
Notice shall be directed to the parties as follows:
For Grantor: County Executive
Whatcom County Courthouse, Suite 108
311 Grand Ave.
Bellingham, WA 98225
For Grantee: Trans Mountain Pipeline (Puget Sound) LLC
c/o Land & Right -of -Way Department
7815 Shellmont Street
Burnaby, BC V5A 4S9
20.8 The parties each represent and warrant that they have full authority to enter into and to
perform this Franchise, that they are not in default or violation of any permit, license, or similar
requirement necessary to carry out the terms hereof, and that no further approval, permit, license,
certification, or action by a governmental authority is required to execute and perform this
Franchise, except such as may be routinely required and obtained in the ordinary course of
business.
20.9 This Franchise and the attachments hereto represent the entire understanding and
agreement between the parties with respect to the subject matter and it supersedes all prior oral
negotiations between the parties. This Franchise can be amended, supplemented, modified or
changed only by an agreement in writing which makes specific reference to the Franchise or the
appropriate attachment and which is signed by the party against whom enforcement of any such
amendment, supplement, modification or change is ought.
20.10 The section titles used herein are for reference only and should not be used for the
purpose of interpreting this Franchise.
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20.11 The Ordinance authorizing this Franchise shall be effective ten (10) days after being
signed by the County Executive, with the Franchise granted hereunder finally effective pursuant
to the terms of Section , having been: (i) introduced to the County Council not less than thirteen
(13) days before its passage; (ii) brought to public notice by such notice having been posted in
three (3) public places in Bellingham at least fifteen (15) days before the day fixed for the public
hearing; (iii) published at least twice in the official newspaper for the County and no later than
five (5) days prior to the day fixed for the hearing and as otherwise required by law; and (iv)
passed at a regular meeting of the legislative body of the County of Whatcom by a vote of at
leasta majority ofinembers of the County Council on April 20th , 2021.
ADOPTED this 20thday of April , 2021.
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Dana Browrf tD v0 �"lerk of the Council
APPROVE`& `A5w TOE FORM:
Christopher Quinn
Civil Deputy Prosecutor
(approved electronically 3/10/2021)
21
WHATCOM COUNTY COUNCIL
WHATCOM COUNTY, WASHINGTON
Barry Buchanan, Council Chair
Approved () Denied
S,-" C S4"
Satpal Singh idhu, County Executive
Exhibit "A"
Franchise Area.
County Road #360
Jones Road crossing 166.2 feet West of the NE corner of the NE '/4 of the S W '/4 of Section 36,
Township 41 North, Range 4 East.
County Road #551
Conchman Road crossing 987.47 feet North of the SE corner of the SW '/4 of the SW/4 of
Section 36, Township 41 North, Range 4 East.
County Road 4182
Rock Road crossing 568.0 feet East of the SW corner of Section 36, Township 41 North, Range
4 East.
County Road #179
Sumas-Kendall Road crossing 489.7 feet West of the SE corner of the SE '/4 of the NE '/4 of
Section 2, Township 40 North, Range 4 East.
County Road 4343
Graveyard Road crossing 1789.1 feet South of the NW corner of the NE '/4 of the SE '/4 of
Section 2, Township 40 North, Range 4 East.
Clearbrook or Steel Road crossing 981.3 feet East of the NW corner of the SE '/4 of the NW '/4 of
Section 11, Township 40 North, Range 4 East.
County Road #91
North Pass Road crossing 443.01 feet East of the NW corner of the SW '/4 of the SW '/4 of
Section 11, Township 40 North, Range 4 East.
County Road 4438
Swanson Road crossing 512.36 feet North of the SE corner of the NE'/4 of the SW '/4 of Section
15, Township 40 North, Range 4 East.
County Road #84
Telegraph Road crossing approximately 1200 feet North of south line of Section 15 and
approximately 1000 feet West of NS center line of Section 15, Township 40 North, Range 4
East.
County Road 4330
Alm Road crossing 473.81 feet East of the NW corner of Section 22, Township 40 North, Range
4 East.
iPON
County Road 4393
Gillies (Carmen) Road crossing 1037.35 feet East of the center of Section 21, Township 40
North, Range 4 East.
County Road 487
Crossing approximately 716 feet South of the North West corner of the SW '/4 of the SW/4 of
Section 28, Township 40 North, Range 4 East.
County Road #75
Emmerson Road crossing 124 feet South of the North West corner of the SE '/4 of the SE '/4 of
Section 31, Township 40 North Range 4 East.
County Road #269
Pole Road crossing approximately 475 feet East of the South West corner of the SE '/4 of Section
1, Township 39 North, Range 3 East.
County Road 4151
Everson Goshen Road crossing approximately 1540 feet North of the South West corner of the
SW '/4 of Section 12 Township 39 North, Range 3 East.
County Roads 116 & 117.
Central Road crossing 1114.12 feet West of the South East corner of Section 11, Township 39
North, Range 3 East.
County Road 461
Hemmi Road crossing 111.18 feet East of the South West corner of Section 14, Township 39
North, Range 3 East.
County Road 4150
Noon Road crossing 152.9 feet South of the North West corner of Section 23, Township 39
North, Range 3 East.
County Road 4188
Axton Road Crossing 1239.54 feet East of the South West corner of Section 22, Township 39
North, Range 3 East.
County Road #675
Farm to Market Road crossing approximately 1125 feet South of North West corner of Section
27, Township 39 North, Range 3 East.
County Road #58
Smith Road crossing 949.43 feet West of South East corner of the SW/4 of Section 28,
Township 39 North, Range 3 East.
23
County Road 4478
Kelly Road crossing 985.39 feet East of the South West corner of Section 33, Township 39
North Range 3 East.
County Road #44
Van Wyck Road crossing 1165.18 feet East of the South West corner of Section 4, Township 39
North, Range 3 East.
Moss Street crossing 151 feet West of the South East corner of Lot 2 (North'/2) of the NW '/4 of
Section 9, Township 38 North, Range 3 East.
Lake Street crossing 170.70 feet West of the South East corner of the NW '/4 of the NW '/4 of
Section 9, Township 38 North, Range 3 East.
Depot Street crossing 527.70 feet North and 158.17 feet West of the South East corner of the SW
'/4 of the NW '/4 of Section 9, Township 38 North, Range 3 East.
Ayer Street crossing 263.85 feet North and 124.11 feet West of South East corner of the SW/4
of the NW '/4 of Section 9, Township 38 North, Range 3 East.
June Street crossing 150.03 feet West of the South East corner of SW '/4 of NW '/4 of Section 9,
Township 38 North, Range 3 East.
County Road 4422
Duer Road crossing 108.67 feet West of the South East corner of the SW '/4 of the SW '/4 of
Section 9, Township 38 North, Range 3 East.
County Road #224
Gunderson Road crossing 212.07 feet South of North West corner of the SW '/4 of Section 10,
Township 37 North, Range 3 East.
Unnamed Road crossing 149.5 feet North of South West corner of Lot 8, in the South East
corner of the NE '/4 of the SE '/4 of Section 15, Township 37 North, Range 3 East.
County Road 4277 (Old Lake Samish & Fairhaven Road) Crossing approximately 625 feet North
and 625 feet East of the center of Section 36, Township 37 North, Range 3 East.
County Road # 549
(Nulle Road) Crossing approximately 800 feet South and 630 feet East of center of Section 36,
Township 37 North, Range 3 East.
BRANCH LINE — Laurel to G.P.
County Road 484
(Old Telegraph Road) crossing approximately 630 feet South and 700 feet East from the North
West corner of Section 33 Township 39 North, Range 3 East.
24
County Road #384
(Hannegan Road) crossing 712.41 feet South of the North West corner of Section 33, Township
39 North, Range 3 East.
County Road #415
(Aldrich Road) crossing 890.45 feet South from North West corner of NE '/4 of Section 35,
Township 39 North, Range 2 East.
County Road # 104
(Waske Road) crossing 913.08 feet South of North West corner of Section 35, Township 39
North, Range 2 East.
Pipe Line crossing in the Northern half of NE '/4 of Section 34, including County Road #57
(Northwest Diagonal).
Pipe line crosses West line ofNE'/4 of Section 34, 960.33 feet South of North line of Section 34
and crosses East line of Section 34, 913.08 feet South of North line of Section 34, Township 39
North, Range 2 East.
County Road #424
(Graveline Road) 974.31 feet South of the North West corner of NE '/4 of the NW '/4 of Section
34, Township 39 North, Range 2 East.
County Road #651
(Byers Road) crossing 974.83 feet South of North West corner of Section 34, Township 39
North, Range 2 East.
County Road #373
(Smith Road) crossing 245.45 feet East of North West corner of Section 33, Township 39 North,
Range 2 East.
County Road #623
(Crossing approximately 1200 feet North and 650 feet West of the South East corner of Section
29, Township 39 North, Range 2 East.
County Road 4317
(Neilson Road) crossing 403.47 feet South of the North West Corner of the NE '/4 of Section 32,
Township 39 North, Range 2 East.
County Road 959
(River Road) crossing approximately 1050 feet South and 600 feet of the North East corner of
Section 31, Township 39 North, Range 2 East.
County Road #312
(Imhoff Road) crossing 1001.41 feet South of the North West corner of the NE'/4 of Section 31,
Township 39 North, Range 2 East.
25
County Road #409
(Johnson Road) crossing 955.95 feet South of the North West corner of Section 31, Township 39
North, Range 2 East.
County Road #20
(Olson Road) crossing 857.96 feet South of the North West corner of Section 36, Township 39
North, Range 1 East.
County Road #94
(Barr Road) crossing 855.69 feet South of the North West corner of the NE'/4 of Section 35,
Township 39 North, Range 1 East.
County Road #203
(Elder Road) crossing 772.46 feet South of the North West corner of Section 35, Township 39
North, Range 1 East.
County Road #307
(Lake Terrill Road) crossing 870.01 feet South of the North West corner of Section 34,
Township 39 North, Range 1 East.
26
Exhibit B
ACCEPTANCE OF FRANCHISE
Trans Mountain Pipeline (Puget Sound) LLC
The Whatcom County Council at its meeting of April 20, 2021, adopted Ordinance
2021-020 approving the application for franchise filed by Trans Mountain Pipeline
(Puget Sound) LLC. The petition and all related documents are available for review
in the Council Office as Ole number AB2021-171.
Trans Mountain Pipeline (Puget Sound) LLC hereby accepts, subject to all the
conditions contained in Ordinance 2021-020, that certain non-exclusive franchise to
construct, operate, maintain, remove, replace, and repair existing pipeline facilities,
together with appurtenances thereto, for the transportation of petroleum products
and byproducts within and through the franchise area. The franchise area means
the public roads, streets, avenue, alleys, highways, grounds, and other public
places of the County as described in Exhibit A (Franchise Area) of Ordinance 2021-
020.
Granting of this franchise becomes official upon receipt from the petitioner of this
signed and notarized document, and payment by petitioner of publication costs
incurred by the County Council Office.
This franchise, when granted, shall be in effect for a period of twenty-five (25)
years.co
��'TC�®® ®® WHATCOM COUNTY COUNCIL
A�� ®��®®� WHATCOM COUNTY, WASHINGTON
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Dane'® rowh- vig® Barr Bu hana
Clerk 6*,®the Cauntil ,';,;:1- it Cou hair
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Agent for the petitioner, Trans Mountain Pipeline (Puget Sound) LLC:
Date. r�
Province of /)z'` A )
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Signed and sworn to before me on this . , day of ° _ , 2021,
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(Agent for Petitioner)
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Note/Public i and for the Provinces , {
Glenn Smyth
Barrister & Solicitor
My v notar commission expires: 4L
Effective Date of this franchise: April 30, 2021