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HomeMy WebLinkAbout5163 RESOLUTION NO. 51 6 3 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF AUBURN, WASHINGTON, AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE PUBLIC WAY AGREEMENT NO. 15-22 BETWEEN THE CITY OF AUBURN AND SPRINT COMMUNICATIONS COMPANY L.P. WHEREAS, Sprint Communications Company L.P.-("Sprint") has applied to the City for a non-exclusive Public Way Agreement for the right of entry, use, and occupation of certain public rights-of-way within the City of Auburn, expressly to install, construct, erect, operate, maintain, repair, relocate and remove its facilities in, on, upon, along and/or across those right(s)-of-way; and WHEREAS, the City has reviewed Sprint's application and determined that the location of Sprint's facilities within the requested rights-of-way is in the best interest of the City and the citizens of Auburn, NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF AUBURN, KING COUNTY, WASHINGTON, HEREBY RESOLVES as follows: Section 1. The Mayor of the City of Auburn and the Auburn City Clerk are hereby authorized to execute a Public Way Agreement between the City of Auburn and Sprint, a copy of which is attached hereto, marked as Exhibit 1 ' and incorporated herein by this reference. Resolution No. 5163 Public Way Agreement No. 15-22 July 14, 2015 Page 1 of 2 Section 2. The Mayor is hereby authorized to implement such administrative procedures as may be necessary to carry out the directives of this legislation. Section 3. This resolution shall be in full force and effect upon passage and signatures hereon. s> Dated and Signed this day of ae;L„, 2015. CITY OF AUBURN ANCY B MAYOR 7WS ATTEST: Danielle E. Daskam, City Clerk APPR D gAS/TO FORM:D `el i Attorney Resolution No. 5163 Public Way Agreement No. 15-22 July 14, 2015 Page 2 of 2 CITY OF AUBURN PUBLIC WAY AGREEMENT WITH SPRINT COMMUNICATIONS COMPANY L.P. This Public Way Agreement is entered into by and between the City of Auburn, Washington, a municipal corporation ("City") and Sprint Communications Company L.P., a Delaware limited partnership ("Grantee"). WHEREAS, Grantee has applied to the City for a non-exclusive Public Way Agreement for the right of entry, use, and occupation of certain public right(s)-of-way within the City of Auburn, expressly to install, construct, erect, operate, maintain, repair, relocate and remove its facilities in, on, upon, along and/or across those right(s)-of-way; and WHEREAS, the City has reviewed the Grantee's application and determined that the location of Grantee's facilities within the requested right(s)- of-way is in the best interest of the City and the citizens of Auburn, NOW, THEREFORE, in consideration of the mutual benefits and conditions set forth below, the parties hereto agree as follows: Section 1. Notice A. Except as defined in the respective filing and emergency work provisions of Sections 5 and 7 herein, all notices, requests, demands and other communications shall be in writing and are effective three (3) days after deposited in the U.S. mail,, certified and postage paid, or upon receipt if personally delivered or sent by next-business-day delivery via a nationally recognized overnight courier to the addresses set forth below. City or Grantee may from time to time designate any other address for this purpose by providing written notice to the other party effective thirty (30) days after the provision thereof. City: Engineering Aide, Community Development and Public Works Department - Transportation City of Auburn 25 West Main Street Auburn, WA 980014998 Telephone: (253) 931-3010; Fax: (253) 931-3053 Resolution No. 5163, Exhibit 1 Version Date: 06/15/2015 PUBLIC WAY AGREEMENT NO. 15-22 Pagel with a copy to: City Clerk City of Auburn 25 West Main Street Auburn, WA 98001-4998 Grantee: Sprint Real Estate Mailstop: KSOPHT0101-22040 6391 Sprint Parkway Overland Park, KS 66251-2650 Attn: Charlene White Voice: (913) 794-8199; Fax (913) 523-8353 With a copy to: Sprint Nextel Law Department Mailstop: KSOPHT0101-22020 6391 Sprint Parkway Overland Park, KS 66251-2020 Attn: Real Estate Attorney B. Any changes to the above-stated Grantee information shall .be sent to the City's Engineering Aide, Public Works Department — Transportation Division, with copies to the City Clerk, referencing the title and date of this agreement. C. The Grantee's voice and fax telephone numbers shall be staffed at a minimum of between 8:00 AM and 5:00 PM Pacific Time, Monday through Friday, excepting holidays. Grantee may be reached at any time through its Network Operations Command Center at 800-877-6627, Option 5. Section 2. Grant of Right to Use Public Way A. Subject to the terms and conditions stated herein, the City grants to the Grantee general permission to enter, use, and occupy the right(s)-of-way specified in Exhibit "A," attached hereto (the "Public Way"). B. The Grantee is authorized to install, remove, construct, erect, operate, maintain, relocate and repair the facilities specified in Exhibit "B," attached hereto, and all necessary appurtenances thereto, ("Grantee Facilities") for provision of lawful communications, including, without limitation, long distance voice and data communications and other lawful communications as disclosed to Resolution No. 5163, Exhibit 1 Version Date: 06/15/2015 PUBLIC WAY AGREEMENT NO. 15-22 Page 2 the City from time to time ("Grantee Services") in, along, under and across the Public Way, for the sole purpose of providing commercial utility or telecommunications services to persons or areas outside the City. C. This Public Way Agreement does not. authorize the use of the Public Way for any facilities or services other than Grantee Facilities and Grantee Services, and it extends no rights or privilege relative to any facilities or services of any type, including Grantee Facilities and Grantee Services, elsewhere within the City. D. This Public Way Agreement is non-exclusive and does not prohibit the City from entering into other agreements, including Public Way Agreements, impacting the Public Way, unless the City determines that entering into such agreements interferes with Grantee's rights under this Agreement. E. Except as explicitly set forth herein, this Public Way Agreement does not waive any rights that the City has or may hereafter acquire with respect to the Public Way or any other City roads, rights-of-way, property, or any portions thereof, This Public Way Agreement shall be subject to the power of eminent domain, and in any proceeding under eminent domain, the Grantee acknowledges its use of the Public Way shall have no value. F. The City reserves the right to change, regrade, relocate, abandon, or vacate the Public Way. If, at any time during the term of this Public Way Agreement, the City vacates any portion of the Public Way, the City may reserve an easement for Grantee Facilities within that vacated portion, pursuant to RCW 35.79.030, within which the Grantee may continue to operate the Grantee Facilities under the terms of this Public Way Agreement for the remaining period set forth under Section 3. G. The Grantee agrees that its use of Public Way shall at all times be subordinated to and subject to the City and the public's need for municipal infrastructure, travel, and access to the Public Way, except as may be otherwise required by law. H. Should the Grantee seek to use the Public Way to provide services, including Grantee Services, to City residents or businesses, the Grantee shall apply for, obtain, and comply with the terms of a City franchise agreement for such use. Entry into a City franchise agreement shall automatically terminate this Agreement. Resolution No. 5163, Exhibit 1 Version Date: 06/15/2015 PUBLIC WAY AGREEMENT NO. 15-22 Page 3 Section 3. Term of Agreement A.. This Public Way Agreement shall run for a period of five (5) years, from the date of execution specified in Section 5. B. Renewal Option of Term: The Grantee may renew this Public Way Agreement for an additional five (5) year period upon submission and approval of the application specified under ACC 20.04.120, as it now exists or is amended, within the timeframe set forth therein (currently 180 to 120 days prior to expiration of the then-current term). Any materials submitted by the Grantee for a previous application may be considered by the City in reviewing a current application, and the Grantee shall only submit those materials deemed necessary by the City to address changes in the Grantee Facilities or Grantee Services, or to reflect specific reporting periods mandated by the ACC. C. Failure to Renew Public Way Agreement— Automatic Extension. If the Parties fail to formally renew this Agreement prior to the expiration of its term or any extension thereof, the Agreement automatically continues month to month until renewed or until either party gives written notice at least one hundred eighty (180) days in advance of the intent not to renew the Agreement. Section 4. Definitions For the purpose of this agreement: "ACC-" means the Auburn City Code. "Emergency" means a condition of imminent danger to the health, safety and welfare of Persons or property located within the City including, without limitation, damage to Persons or property from natural consequences, such as storms, earthquakes, riots, acts of terrorism or wars. "Maintenance or Maintain" shall mean examining, testing, inspecting, repairing, maintaining and replacing the existing Grantee Facilities or any part thereof as required and necessary for safe operation. "Relocation" means permanent movement of Grantee facilities required by the City, and not temporary or incidental movement of such facilities, or other revisions Grantee would accomplish and charge to third parties without regard to municipal request. Resolution No. 5163, Exhibit 1 Version Date: 06/15/2015 PUBLIC WAY AGREEMENT NO. 15-22 Page 4 "Rights-of-Way" means the surface and the space above and below streets, roadways, highways, avenues, courts, lanes, alleys, sidewalks, easements, rights-of-ways and similar public properties and areas. Section 5. Acceptance of Public Way Agreement A. This Public Way Agreement, and any rights granted hereunder, shall not become effective for any purpose unless and until Grantee files with the City Clerk (1) the Statement of Acceptance, attached hereto as Exhibit "C", (2) all verifications of insurance,coverage specified under Section 15, (3) the financial guarantees specified in Section 16 (collectively, "Public Way Acceptance"), and (4) payment of any outstanding application fees per the City fee schedule. The date that the above conditions are completed as determined by the City shall be the effective date of this Public Way Agreement. B. Should the Grantee fail to complete the requirements of Section 5 Paragraph A within thirty (30) days after the effective date of the resolution approving the Public Way Agreement, said agreement will automatically terminate and shall be null and void. Section 6. Construction and Maintenance A. The Grantee shall apply for, obtain, and comply with the terms of all permits required under ACC Chapter 12,24 for any work done upon Grantee Facilities. Grantee shall comply with all applicable City, State, and Federal codes, rules, regulations, and orders in undertaking such work, which shall be done in a thorough and proficient manner. B. Grantee agrees to coordinate its activities with the City and all other utilities located within the Public Way. C. The City expressly reserves the right to prescribe how and where Grantee Facilities shall be installed within the Public Way and may from time to time, pursuant to the. applicable sections of this Public Way Agreement, require the removal, relocation and/or replacement thereof in the public interest and safety at the expense of the Grantee. D. Before commencing any work within the Public Way, the Grantee shall comply with the One Number Locator provisions of RCW Chapter 19.122 to identify existing utility infrastructure. --------------------- Resolution No. 5163, Exhibit 1 Version Date: 06/15/2015 PUBLIC WAY AGREEMENT NO. 15-22 Page 5 Section 7. Access, Repair and Emergency Work In the event of an emergency, the Grantee may commence such repair and emergency response work as required under the circumstances, provided that the Grantee shall notify the City telephonically during normal business hours (at 253-931-3010 and during non—business hours at 253-288-2121) as promptly as possible before such repair or emergency work commences, and in writing as soon thereafter as possible. Such notification shall include the Grantee's emergency contact phone number for the corresponding response activity. For any emergency or after normal business hour issues involving the Grantee's facilities which requires the Grantee's immediate response the City shall contact the Grantee at its Network Operations Command Center(NOCC) - (800) 877- 6627 option 1, which is operated 24 hours a day, seven days a week. The City may act, at any time, without prior written notice in the case of emergency, but shall notify the Grantee in writing as promptly as possible under the circumstances of the nature of the emergency and the actions taken to address it. Section 8. Damages to City and Third-Party Property Grantee agrees that. should any of its actions under this Public Way Agreement impair or damage any City property, survey monument, or property owned by a third-party, Grantee will restore, at its own cost and expense, said property to a safe condition. Such repair work shall be performed and completed to the satisfaction of the City Engineer. Section 9. Location Preference A. Any structure, equipment, appurtenance or tangible property of a privately-owned utility, other than the Grantee's, which was installed, constructed, completed or in place prior in time to Grantee's application for a permit to construct or repair Grantee Facilities under this Public Way Agreement shall have preference as to positioning and location with respect to the Grantee Facilities. However, to the extent that the Grantee Facilities are completed and installed prior to new or additional structures, equipment, appurtenances or tangible property of an earlier privately-owned utility being installed or completed, then the Grantee Facilities shall have priority. These rules governing preference shall continue in the event of the necessity of relocating or changing the grade of any such City road or right-of-way. A relocating utility shall not necessitate the relocation of another utility that otherwise would not require relocation. This Section shall not apply to Resolution No. 5163, Exhibit 1 Version Date: 06/15/2015 PUBLIC WAY AGREEMENT NO. 15-22 Page 6 any City facilities or utilities that may in the future require the relocation of Grantee Facilities. Such relocations shall be governed by Section 11. B. Grantee shall maintain a minimum underground horizontal separation of five (5) feet from City water facilities and ten (10) feet from above- ground City water facilities; provided, that for development.of new areas, the City, in consultation with Grantee and other utility purveyors or authorized users of the Pubic Way, will develop guidelines and procedures for determining specific utility locations. Section 10. Grantee Information A. Grantee agrees to supply, at no cost to the City, such information as the City Engineering Aide finds necessary to coordinate municipal functions with Grantee's activities in the Public Way and to fulfill any municipal obligations under state law. Said information shall include, at a minimum; as-built drawings of Grantee Facilities; installation inventory; and maps and plans showing the location of existing or planned facilities within the City. Said information shall be provided either in hard copy and/or electronic format as requested by the City, compatible with the City's then-current database system, including the City's geographic information Service (GIS) data base. Grantee shall keep the City Engineering Aide informed of its long-range plans for coordination with the City's long-range plans. B. The parties understand that Washington law limits the ability of the City to shield from public disclosure any information given to the City. Grantee shall clearly mark any information that it provides to the City as "Proprietary" information if Grantee believes that disclosure of that information would be exempt under the trade secrets exemption in RCW 42.56.270. The City agrees that if it receives a request for Grantee's proprietary information, it will initially assert the exemption under 42.56.270, and will notify Grantee of the request. The City shall not initiate legal action to prevent disclosure of Grantee's proprietary information. If a requestor files a lawsuit to compel disclosure, Grantee agrees to defend the action at Grantee's sole expense. Additionally, Grantee shall indemnify and hold harmless the City for any loss or liability for costs for attorneys' fees because of non-disclosures requested by Grantee under Washington's open public records law, provided reasonable notice and opportunity to defend was given to Grantee or Grantee is made aware of the pending of a request or claim. --------------------- Resolution No. 5163, Exhibit 1 Version Date: 06/15/2015 PUBLIC WAY AGREEMENT NO. 15-22 Page 7 Section 11. Relocation of Grantee Facilities A. Except as otherwise so required by law, Grantee agrees to relocate, remove, or reroute its facilities at its sole expense and liability and at no expense or liability to the City, except as may be required by RCW Chapter 35.99, or as further provided by Title 20 ACC, as ordered by the City Engineer, and upon sixty (60) days written notice from the City. Pursuant to the provisions of Section 14, Grantee agrees to defend, indemnify costs, including attorney fees and hold the City harmless from any customer or third-party claims for service interruption or other losses in connection with any such change, relocation, abandonment, or vacation of the Public Way. B. In the event that the Public Way shall become a Primary State Highway as provided by law, the State Department of Transportation may order the Grantee to perform or undertake, at its sole expense, changes to the location of Grantee Facilities so that the same shall not interfere with such state highway and so that such facilities shall conform to such new grades or routes as may be established. C. If a readjustment or relocation of the Grantee Facilities is necessitated by a request from a party other than the City, that party shall pay the Grantee the actual costs thereof. Section 12. Abandonment and or Removal of Grantee Facilities A. Within one hundred and eighty (180) days of Grantee's permanent cessation of use of the Grantee Facilities, or any portion thereof, the Grantee shall, at the City's discretion, either abandon in place or remove the affected facilities. B. The parties agree that those conduits specified in Exhibit B, attached hereto, have been abandoned by the Grantee and are the property of the City. The City has all responsibility for the operation and maintenance of those conduits. In consideration of the Grantee releasing all claims it may have to the ownership of the conduits, the City grants the Grantee the right to use one conduit within each of the multi-conduit bundle shown in Exhibit B for the period of this Public Way Agreement, including any renewals thereof under Section 3. C. The parties expressly agree that this Section shall survive the expiration, revocation or termination of this Public Way Agreement. Section 13. Undergrounding Resolution No. 5163, Exhibit 1 Version Date: 06/15/2015 PUBLIC WAY AGREEMENT NO. 15-22 Page 8 A. The parties agree that this Public Way Agreement does not limit the City's authority under federal law, state law, or the ACC, to require the undergrounding of utilities. B. Whenever the City requires the undergrounding of aerial utilities in the Public Way, the Grantee shall underground the Grantee Facilities in the manner specified by the City Engineer, and where other utilities are present and involved in the undergrounding project, Grantee shall only be required to pay its fair share of common costs borne by all utilities, in addition to the costs specifically attributable to the undergrounding of Grantee Facilities. Common costs shall include necessary costs for common trenching and utility vaults. Fair share shall be determined in comparison to the total number and size of all other utility facilities being undergrounded. Section 14. Indemnification and Hold Harmless A. The Grantee shall defend,, indemnify, and hold the City and its officers, officials, agents, employees, and volunteers harmless from any and all costs, claims, injuries, damages, losses, suits, or liabilities of any nature including reasonable attorneys' fees arising out of or in connection with the Grantee's performance under this Public Way Agreement, except to the extent such costs, claims, injuries, damages, losses; suits, or liabilities are caused by the sole negligence or willful misconduct of the City. B. The Grantee shall indemnify and hold the City harmless from any liability arising out of or in connection with any damage or loss to the Grantee Facilities caused by maintenance and/or construction work performed by, or on behalf of, the City within the Public Way or any other City road, right-of-way, or other property, except to the extent any such damage or loss is directly caused by the sole negligence of the City. C. The Grantee acknowledges that neither the City nor any other public agency with responsibility for firefighting, emergency rescue, public safety or similar duties within the City has the capability to provide trench, close trench or confined space rescue. The Grantee, and its agents, assigns, successors, or contractors, shall make such arrangements as Grantee deems fit for the provision of such services. The Grantee shall hold the City harmless from any liability arising out of or in connection with any damage or loss to the Grantee for the City's failure or inability to provide such services, and, pursuant to the terms of Section 14(A), the Grantee shall indemnify the City against any and all third- ------------ --------- Resolution No. 5163, Exhibit 1 Version Date: 06/15/2015 PUBLIC WAY AGREEMENT NO. 15-22 Page 9 party costs, claims, injuries, damages, losses, suits, or liabilities based on the City's failure or inability to provide such services. D. Should a court of competent jurisdiction determine that this Agreement is subject to RCW 4.24.115, 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 the Grantee and the City, its officers, officials, employees, and volunteers, the Grantee's liability hereunder shall be only to the extent of the Grantee's negligence or willful misconduct. It is further specifically and expressly understood that the indemnification provided herein constitutes the City's and Grantee's waivers of immunity under Industrial Insurance, Title 51 RCW, solely for the purposes of the indemnifications set forth in this Section 14. This waiver has been mutually negotiated by the parties. The provisions of this section shall survive the expiration or termination of this Agreement. E. Acceptance by the City of any work performed by the Grantee shall not be grounds for avoidance of this section. Section 15. Insurance A. The Grantee shall procure and maintain for the duration of the Agreement, insurancer against claims for injuries to persons or damage to property which may arise from or in connection with the performance of the work hereunder by the Grantee, its agents, representatives, or employees in the amounts and types set forth below: 1. Automobile Liability insurance covering all owned, non- owned, hired, and leased vehicles with a minimum combined single limit for bodily injury and property damage of $1,000,000 per accident. Coverage shall be written on Insurance Services Office (ISO) form CA 00 01 or a substitute form providing equivalent liability coverage. If necessary, the policy shall be endorsed to provide contractual liability coverage. 2. Commercial General Liability insurance with limits no less than $1,000,000 each occurrence, $2,000,000 general aggregate and a $2,000,000 products-completed operations aggregate limit. Coverage shall be written on ISO occurrence form CG 00 01 and shall cover liability arising from premises, operations, independent contractors, products-completed operations, and personal injury and advertising injury and liability assumed under an insured contract. Aggregate limit of $2 Million can be satisfied by Excess Liability at $1 --------------------- Resolution No. 5163, Exhibit 1 Version Date: 06/15/2015 PUBLIC WAY AGREEMENT NO. 15-22 Page 10 Million. There shall be no endorsement or modification of the Commercial General Liability insurance for liability arising from explosion, collapse, or underground property damage. The City.shall be named as an additional insured under the Grantee's Commercial General Liability insurance policy with respect to the work performed under this Public Way Agreement using ISO Additional Insured Endorsement CG 20 10 10 01 and Additional Insured-Completed Operations endorsement CG 20 37 10 01 or substitute endorsements providing equivalent coverage. 3. Professional Liability insurance with limits no less than $1,000,000 per claim for all professionals employed or retained by the Grantee to perform services under this Public Way Agreement. 4. Workers' Compensation coverage as required by the Industrial Insurance laws of the State of Washington. Employer's Liability $1,000,000 per occurrence (Stop Gap Liability included in Employer's Liability.) B. The insurance policies are to contain, or be endorsed to contain, the following provisions for Automobile Liability, Professional Liability, and Commercial General Liability insurance: 1. The Grantee's insurance coverage shall be primary insurance as respects the City. Any insurance, self-insurance, or insurance pool coverage maintained by the City shall be in excess of the Grantee's insurance and shall not contribute with it. 2. The Grantee's insurance shall be endorsed to state that coverage shall not be cancelled by either party except after thirty (30) days' prior written notice by mail, has been given to the City. C. Acceptability of Insurers, Insurance is to be placed with insurers with a current A.M. Best rating of not less than A-:VII. D. Verification of Coverage. Grantee shall furnish the City with documentation of insurer's A.M. Best rating and with original certificates. Amendatory endorsements are available online at the following web address: httot://www.lockton.com/netoert2/key/termsandConditions.aspx?ck-L11 N23640. 024261 J504440. E. Grantee shall have the right to self-insure any or all of the above- required insurance. Any such self-insurance is subject to approval by the City. Resolution No. 5163, Exhibit 1 Version Date: 06/15/2015 PUBLIC WAY AGREEMENT NO. 15-22 Page 11 F. Grantee's maintenance of insurance as required by this Agreement shall not be construed to limit the liability of Grantee to the coverage provided by such insurance, or otherwise limit the City's recourse to any remedy to which the City is otherwise entitled at law or in equity. Section 16. Performance Security Pursuant to ACC Chapter 20.10, the Grantee shall provide the City with adequate security as specified in ACC Section 20.10.250, in a form and substance acceptable to the City, securing the Grantee's faithful compliance with the terms of this Public Way Agreement. Such guarantees shall be in a performance bond in the amount of fifty thousand dollars ($50,000.00). Section 17. Successors and Assignees A. All the provisions, conditions, regulations and requirements herein contained shall be binding upon the successors, assigns of, and independent contractors of the Grantee, and all rights and privileges, as well as all obligations and liabilities of the Grantee shall inure to its successors, assignees and contractors equally as if they were specifically mentioned herein wherever the Grantee is mentioned. B. This public way agreement shall not be leased, assigned or otherwise alienated without the express consent of the City by resolution. C. Grantee and any proposed assignee or transferee shall provide and certify the following to the City not less than one hundred twenty (120) days prior to the proposed date of transfer: (a) Complete information setting forth the nature, term and conditions of the proposed assignment or transfer; (b) All information required by the City of an applicant for a Public Way Agreement with respect to the proposed assignee or transferee; and, (c) An application fee which shall be set by the City, plus any other costs actually and reasonably incurred by the City in processing, and investigating the proposed assignment or transfer. D. Notwithstanding anything to the contrary contained herein, Grantee may assign this Public Way Agreement or any of its rights under this Public Way Agreement or delegate any of its duties under this Public Way Agreement upon written notice to the City to (i) any entity that it controls, is under common control with or is controlled by or (ii) any entity that is the survivor of a merger, consolidation or other business combination or that acquires all or substantially --------------------- Resolution No. 5163, Exhibit 1 Version Date: 06/15/2015 PUBLIC WAY AGREEMENT NO. 15-22 Page 12 all of the assets of Grantee provided such assignment or delegation specifically states that the successor or assignee agrees to be bound by the terms of this Agreement. Section 18. Dispute Resolution A. In the event of a dispute between the City and the Grantee arising by reason of this Agreement, the dispute shall first be referred to the operational officers or representatives designated by Grantor and Grantee to have oversight over the administration of this Agreement. The officers or representatives shall meet within fifteen (15) calendar days of either party's request for a meeting, whichever request is first, and the parties shall make a good faith effort to achieve a resolution of the dispute. B. If the parties fail to achieve a resolution of the dispute in this manner, either party may then pursue any available judicial remedies. This Public Way Agreement shall be governed by and construed in accordance with the laws of the State of Washington. In the event any suit, arbitration, or other proceeding is instituted to enforce any term of this Agreement, the parties specifically understand and agree that venue shall be exclusively in King County, Washington. The prevailing party in any such action shall be entitled to its attorneys' fees and costs of suit, which shall be fixed by the judge hearing the case, and such fees shall be included in the judgment. Section 19. Enforcement and Remedies A. If the Grantee shall willfully violate, or fail to comply with any of the provisions of this Public Way Agreement through willful intent or gross negligence, or should it fail to heed or comply with any notice given to Grantee under the provisions of this agreement, the City may, at its discretion, provide Grantee with written notice to cure the breach within thirty (30) days of notification. If the City determines the breach cannot be cured within thirty days, the City may specify a longer cure period, and condition the extension of time on Grantee's submittal of a plan to cure the breach within the specified period, commencement of work within the original thirty day cure period, and diligent prosecution of the,work to completion. If the breach is not cured within the specified time, or the Grantee does not comply with the specified conditions, the Grantee, and its successors or assignees, shall forfeit all rights Resolution No. 5163, Exhibit 1 Version Date: 06/15/2015 PUBLIC WAY AGREEMENT NO. 15-22 Page 13 conferred hereunder, and the Public Way Agreement may be revoked or annulled by the City with no further notification. B. Should the City determine that Grantee is acting beyond the scope of permission granted herein for Grantee Facilities and Grantee Services, the City reserves the right to provide written notice to Grantee requiring the Grantee to apply for, obtain, and comply with all applicable City permits, franchises, or other City permissions for such actions, and if the Grantee's actions are not allowed under the Auburn City Code, to compel Grantee to cease such actions. If such permits, franchises or other permissions are not obtained within a reasonable period of time, as determined by the City, following Grantee's receipt of written notice of such requirement, then City may thereafter cancel this Public Way Agreement.on thirty (30) days written notice to Grantee. Section 20. Compliance with Laws and Regulations A. This Public Way Agreement is subject to, and the Grantee shall comply with all applicable federal and state or City laws, regulations and policies (including all applicable elements of the City's comprehensive plan), in conformance with federal laws and regulations, affecting performance under this Public Way Agreement. Furthermore, notwithstanding any other terms of this agreement appearing to the contrary, the Grantee shall be subject to the police power of the City to adopt and enforce general ordinances necessary to protect the safety and welfare of the general public in relation to the rights granted in the Public Way. B. The City reserves the right at any time to amend this Public Way Agreement to conform to any hereafter enacted, amended, or adopted federal or state statute or regulation relating to the public health, safety, and welfare, or relating to roadway regulation, or a City Ordinance enacted pursuant to such federal or state statute or regulation upon providing Grantee with thirty (30) days written notice of its action setting forth the full text of the amendment and identifying the statute, regulation, or ordinance requiring the amendment. Said amendment shall become automatically effective upon expiration of the notice period unless, before expiration of that period, the Grantee makes a written call for negotiations over the terms of the amendment. If the parties do not reach agreement as to the terms of the amendment within thirty (30) days of the initial notice, the City may enact the proposed amendment, by incorporating the Grantee's concerns to the maximum extent the City deems possible. --------------------- Resolution No. 5163, Exhibit 1 Version Date: 06/15/2015 PUBLIC WAY AGREEMENT NO. 15-22 Page 14 C. The City may terminate this Public Way Agreement upon thirty (30) days written notice to the Grantee, if the Grantee fails to comply with such amendment or modification. Section 21. License, Tax and Other Charges This Public Way Agreement shall not exempt the Grantee from any future license, tax, or charge which the City may hereinafter adopt pursuant to authority granted to it under state or federal law for revenue or as reimbursement for use and occupancy of public ways. Section 22. Consequential Damages Limitation Notwithstanding any other provision of this Agreement, in no event shall either party be liable for any special, incidental, indirect, punitive, reliance, consequential or similar damages. Section 23. Severability If any portion of this Public Way Agreement is deemed invalid, the remainder portions shall remain in effect. Section 24. Titles The section titles used herein are for reference only and should not be used for the purpose of interpreting this Public Way Agreement --------------------- Resolution No. 5163, Exhibit 1 Version Date: 06/15/2015 PUBLIC WAY AGREEMENT NO. 15-22 Page 15 DATED and SIGNED this 2\f—day CITY OF AUBURN �cr, k1A-Y NA Y BACKUS AYOR ATTEST: Danielle E. Daskam, City Clerk APPROVED A TO FORM: Da hell B. H � City Attorney --------------------- Resolution No. 5163, Exhibit 1 Version Date: 06/15/2015 PUBLIC WAY AGREEMENT NO. 15-22 Page 16 I Exhibit A Sprint Fiber AUBURN I ' 8 _ r i -- --_- - - ---------------- ----- Resolution No. 5163, Exhibit 1 Version Date: 06/15/2015 PUBLIC WAY AGREEMENT NO. 15-22 Page 17 Exhibit B Grantee Facilities Sprint fiber optic cable occupies 542 linear feet of City right of way through 6 road crossings pursuant to City of Auburn, WA Public Works Department Permit No. 42-71, issued September 17, 1987. The crossing locations are as follows: (1) Crossing at 277th Street, 80*' feet (2) Crossing 285th Street, 110'4"feet (3) Crossing 37th Street N.W., 90'4" feet (4) Crossing Main Street, 90'4" feet (5) Crossing 15th Street S.W., 140'4"feet (6) Crossing 29th Street N.W., 30'feet ----- ---------------- Resolution No. 5163, Exhibit 1 Version Date: 06/15/2015 PUBLIC WAY AGREEMENT NO. 15-22 Page 18 I EXHIBIT "C" STATEMENT OF ACCEPTANCE i SPRINT COMMUNICATIONS COMPANY LP, aiDelaware limited partnership for itself, its successors and assigns, hereby accepts and agrees to be bound by all lawful terms, conditions and provisions of the Public Way Agreement attached hereto and incorporated herein by this reference I SPRINT_COMMUNICATIONS COMPANY, L.P. BY' - Date: Name: Heather M.Wilson T Title: Real Estate Manager I I I STATE OF Kansas ) )ss. COUNTY OF Johnson ) On this day of 560/r!y&0 , 20 /5 , before me the undersigned, a Notary Public in and for the State of 1, duly commissioned and sworn, personally appeared, l4eA _ A. by /soy of Sprint.Communications Company L.P., the company that executed the within and foregoing instrument, and acknowledged the said instrument to be the free and voluntary act and deed of said company, for the uses and purposes therein mentioned, and on oath stated that he/she is authorized to execute said instrument. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal on the date hereinabove set forth. Signature j stave or Kararas _ Mw V_ mar sh NOTARY PUBLIC in and for the State of 6 -n.Sr+s , residing at �U�ncSVa� �tx�u� MY COMMISSION EXPIRES: -N_Irkych �,?Q tj --------------------- - Resolution No. XXXX Version Date: 04/15/2015 PUBLIC WAY AGREEMENT NO. XX-XX Page 17 - j , - ' • - 's cs 4'�� �, . �x 5 .� Sr �L. ..� �, �:, I : '? P;;� 4•s`'r' si i � � ' ` i S i w