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ORDINANCE NO.5 7 0 8
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
AUBURN, WASHINGTON, AUTHORIZING THE MAYOR AND
CITY CLERK TO EXECUTE A PUBLIC WAY AGREEMENT
BETWEEN THE CITY AND TOUCH AMERICA, INC.
WHEREAS, TOUCH AMERICA, INC. has made application for a non-
exclusive Public Way Agreement and the CITY has determined that the
application is complete; and
WHEREAS, it has been determined that TOUCH AMERICA, INC. has
the financial, technical and legal ability to provide the services proposed in its
application; and
WHEREAS, there is capacity in the City's Public Ways, as defined in the
Public Way Agreement, to accommodate TOUCH AMERICA's proposed
facilities; and
WHEREAS, the damage or disruption, if any, of public or private
facilities, improvements, service, travel or landscaping, including remedies, are
addressed in the Public Way Agreement to the satisfaction of the CITY; and
WHEREAS, the cost and disruption of construction within the Public
Ways, as defined in the Public Way Agreement, will be minimized; and
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Ordinance No. 5708
November 18,2002
Page 1
WHEREAS, permission to use the Public Ways, as provided in the Public
Way Agreement, is in the public interest and the effect, if any, on the public
health, safety and welfare is minimized and addressed in the Public Way
Agreement; and
WHEREAS, the service TOUCH AMERICA, INC. will provide to the
region is in the public interest; and
WHEREAS, the Public Way Agreement requires that applicable federal,
state, and City of Auburn telecommunication laws, ordinances, regulations and
policies will be followed during the term of the Public Way Agreement; and
WHEREAS, TOUCH AMERICA, INC. warrants that there are no plans or
intentions to utilize the proposed Telecommunication System to provide Local
Service, and recognizes the necessity to obtain a Franchise from the City prior
to any offering of Local Service;
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF AUBURN,
WASHINGTON, DO ORDAIN AS FOLLOWS:
Section 1. The Mayor and City Clerk of the City of Auburn are hereby
authorized to execute a Public Way Agreement between the City and TOUCH
AMERICA, INC. A copy of said Agreement is attached hereto, designated as
Exhibit "A" and incorporated by reference in this Ordinance.
------------- -------- ----
Ordinance No. 5708
November 18,2002
Page 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 Ordinance shall take effect and be in force five days
from and after its passage, approval and publication as provided by law.
INTRODUCED: DEC - 2 2002
PASSED: OEC - 2 2002
APP\Ã~C - 2 2~~
- ~~', ~
PETER B. LEWIS
MAYOR
ATTEST:
Published: /~ -} -{J L
-------------------------
Ordinance No. 5708
November 18, 2002
Page 3
EXHIBIT "A"
CITY OF AUBURN, WASHINGTON
PUBLIC WAY AGREEMENT WITH TOUCH AMERICA, INC.
WHEREAS, TOUCH AMERICA, INC. has applied to the CITY OF
AUBURN for a non-exclusive Public Way Agreement for the installation,
operation and maintenance of a Fiber-Optics Telecommunications trunk
through System in, on, upon, along and/ or across certain Public Ways within
the CITY OF AUBURN, and
WHEREAS, TOUCH AMERICA, INC. warrants by acceptance of this
Public Ways Agreement that Local Service to the Auburn area, requiring a
Franchise Agreement, is not contemplated at this time.
NOW, THEREFORE, the CITY OF AUBURN, and TOUCH AMERICA,
INC. agree as follows:
PUBLIC WAYS AGREEMENT WITH TOUCH AMERICA, INC.
TABLE OF CONTENTS
Public Ways Agreement.
Attachment 1, Location and Identification of Rights Granted
Attachment 2, Terms and Conditions
PAGE NO.
1-12
13
14-16
PUBLIC WAYS AGREEMENT
SECTION 1.
The City of Auburn, a Washington municipal corporation (hereinafter called
the "CITY") hereby grants to TOUCH AMERICA, INC. (hereinafter called
"GRANTEE"), the right to use that CITY right-of-way hereinafter described in
Attachment 1, which is by this reference incorporated herein, to construct,
replace, maintain and use equipment and Facilities for an underground fiber
Exhibit A
Ordinance No. 5708
Page 1
optic cable system under the specific terms and conditions contained herein for
an initial term of five (5) years, and as provided in Attachment 2 entitled
"Terms and Conditions", which is by this reference incorporated herein, and all
applicable federal, state and local laws, including but not limited to, Chapter
5.84 ACC, entitled "Registration of Telecommunications Carriers, Operators,
Providers, and Other Commercial Utilities", Title 12 ACC, entitled "Streets,
Sidewalks, and Public Works", Chapter 13.32 ACC, entitled "Underground
Wiring Regulations", Title 18 ACC, entitled "Zoning", Title 20 ACC entitled
"Telecommunications and Other Commercial Utilities", and any other
ordinances, codes, rules, regulations and orders as they apply. (GRANTEE)
shall at all times be subject to the exercise of the CITY'S police powers.
SECTION 2. DEFINITIONS.
"Affiliate" means a person that (directly or indirectly) owns or controls, is
owned or controlled by, or is under common ownership or control with another
person.
"Conduit" means the duct or protective enclosure of the fiber optic cable
system.
"Conflict" means a future planned CITY street or utility capital
improvement requiring the CITY's use of the same physical space occupied by
GRANTEE'S Conduit, and relocation of said Conduit is a pre-requisite to
construction of the CITY's planned improvement.
"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 or wars.
"Excess Capacity" means the volume or capacity in any existing or future
duct, Conduit, manhole, hand-hole, or other utility Facility within the public
way that is or will be available for use for additional telecommunications
facilities.
"Facility" means the plant, equipment, and property, including but not
limited to, cables, wires, Conduits, ducts, pedestals, hubs, antennae, electronics,
Exhibit A
Ordinance No. 5708
Page 2
and other appurtenances used or to be used for the purpose of offering
telecommunications services.
"Local Service" means that local exchange service would be provided to
customers (business and/or residential) within the corporate CITY limits of
Auburn.
SECTION 3. INSTALLATION OF EQUIPMENT.
All Facilities shall be installed and maintained at such places and locations as
shall least interfere with existing utilities and franchise rights, and with the free
passage of traffic and in accordance with federal law and the laws of the State of
Washington and Ordinances and Standards of the CITY regulating such
construction. This includes the terms and conditions of any permit required
and issued for construction of such Facilities. GRANTEE warrants as a
condition of this Agreement that any equipment, Facilities and system installed
constitutes a trunk-through system only which will not directly and separately
service local businesses or residents in the CITY.
Prior to selling, leasing, or otherwise transferring any Excess Capacity to any
other person who intends to offer Local Service, GRANTEE shall provide
written notice to the CITY, at least 30 days prior to such transfer, of its intent to
make such a transfer. In addition, GRANTEE shall not complete such lease,
sale or transfer of Excess Capacity, until the transferee has obtained a Franchise
from the CITY.
SECTION 4. RELOCATION OF EQUIPMENT.
Emergencies: Whenever the CITY determines it is necessary that any
Facilities of GRANTEE be removed or relocated to repair an adjacent CITY
utility or to protect and assure the public safety during an Emergency event,
GRANTEE shall, within 24 hours of written notice from the CITY, remove or
relocate such Facilities as directed to an area within the CITY public way
mutually agreed upon, at no cost to the CITY.
Routine:
Exhibit A
Ordinance No. 5708
Page 3
Whenever the CITY determines it necessary that any
Facilities of GRANTEE be moved or relocated to accommodate the
improvement by or on behalf of the CITY of any areas, including, but not
limited to, the grading or widening of any street within the public right-of-way
defined herein, GRANTEE shall, within 30 days of written notice from the
CITY, move or relocate such Facilities as directed, to an area within CITY right-
of-way mutually agreed upon, at no cost to the CITY. GRANTEE shall within
the first 14 days after receipt of notice, communicate to the CITY its intention,
plan and schedule for said or removals. If GRANTEE fails to comply with the
requirements of the initial 14-day period, the CITY has the unilateral right to
proceed with the necessary relocation and removal using its own employees or
contractor, and GRANTEE agrees to reimburse the CITY all reasonable,
documented costs for any relocation, removal or delay costs incurred by the
CITY and/ or its contractors. GRANTEE will design and install its system in
such manner that future relocations required by the CITY may be accomplished
with least interruption of services. In the event GRANTEE fails to complete full
performance within the thirty (30) day period, GRANTEE agrees to reimburse
the CITY for all damages incurred by the CITY or its contractors for delays of
future CITY work in the Public Way related to equipment, Conduit and cable
routing conflicts related to GRANTEE's failure to comply with the requirements
of this subsection.
SECTION 5. RECORD OF INSTALLATION.
GRANTEE shall provide to the CITY, upon the CITY'S request, copies of
available current drawings in use by GRANTEE showing the location of
GRANTEE'S Facilities within public right-of-way. With respect to excavations
within any area, the CITY and GRANTEE shall comply with the provisions of
Chapter 19.122 RCW and any other applicable State law or CITY Ordinance.
Before issuance of a construction permit, GRANTEE shall post a performance
bond from a Washington State based surety company in the amount of 125% of
the cost of construction within the CITY ($30,000.00). Once the installation and
all related site restoration work has been completed to the CITY'S satisfaction
and GRANTEE has submitted record plans as required by the CITY for the
completed project, the CITY will release the bond.
Exhibit A
Ordinance No. 5708
Page 4
SECTION 6. FEES.
As reimbursement for administration expenses, the GRANTEE shall pay an
initial fee to the CITY of ($ 3,830.00) based upon the CITY'S estimate of costs to
process the GRANTEE'S application, and the initial review of the plans
required for the granting of this agreement. The Public Way Agreement is
renewable at 5-year intervals and will require payment of those additional fees,
which may be applicable at the time. Such fees are due and payable within 30
days of the issuance of this agreement. Nothing herein shall exclude the
GRANTEE from any legal obligation to pay to the City additional fees for
permits, inspections, or other issues related to the construction and/ or
operation of the system described in Attachment 1.
SECTION 7. INDEMNITY.
The GRANTEE hereby releases, covenants not to bring suit and agrees to
indemnify, defend and hold harmless the CITY, its elected and appointed
officials, officers, employees, agents, representatives, engineers, consultants,
and volunteers from any and all claims, costs, judgments, awards, or liability to
any person, including claims by the GRANTEE's own employees to which the
GRANTEE might otherwise be immune under Title 51 RCW, arising from
injury or death of any person or damage to property of which the negligent acts
or omissions of the GRANTEE, its agents, servants, officers, or employees in
performing under this Public Ways Agreement are the proximate cause. The
GRANTEE further releases, covenants not to bring suit and agrees to
indemnify, defend and hold harmless the CITY, its elected and appointed
officials, officers, employees, agents, representatives, engineers, consultants,
and volunteers from any and all claims, costs, judgments, awards, or liability to
any person including claims by the GRANTEE's own employees, to which the
GRANTEE might otherwise have immunity under Title 51 RCW, arising
against the CITY solely by virtue of the CITY's ownership or control of the
rights-of-way or other public properties, by virtue of the GRANTEE's exercise
of the rights granted herein, or by virtue of the CITY's permitting the
GRANTEE's use of the CITY's rights-of-way or other public property, based
upon the CITY's inspection or lack of inspection of work performed by the
GRANTEE, its agents and servants, officers or employees in connection with
work authorized on the CITY's property or property over which the CITY has
control, pursuant to this Public Ways Agreement, or pursuant to any other
Exhibit A
Ordinance No. 5708
Page 5
permit or approval issued in connection with this Public Ways Agreement.
This covenant of indemnification shall include, but not be limited by this
reference, claims against the CITY arising as a result of the negligent acts or
omissions of the GRANTEE, its agents, servants, officers, or employees in
barricading, instituting trench safety systems or providing other adequate
warnings of any excavation, construction, or work in any public right- of- way
or other public place in performance of work or services permitted under this
Public Ways Agreement.
Inspection or acceptance by the CITY of any work performed by the GRANTEE
at the time of completion of construction shall not be grounds for avoidance of
any of these covenants of indemnification. Said indemnification obligations
shall extend to claims which are not reduced to a suit and any claims which
may be compromised prior to the culmination of any litigation or the institution
of any litigation.
In the event that the GRANTEE refuses the tender of defense in any suit or any
claim, said tender having been made pursuant to the indemnification clauses
contained herein, and said refusal is subsequently determined by a court
having jurisdiction (or such other tribunal that the parties shall agree to decide
the matter), to have been a wrongful refusal on the part of the GRANTEE, then
the GRANTEE shall pay all of the CITY's costs for defense of the action,
including all reasonable expert witness fees and reasonable attorneys' fees and
the reasonable costs of the CITY, including reasonable attorneys' fees for
recovering costs under this indemnification clause.
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 elected and appointed officials, officers,
employees, agents, representatives, engineers, consultants, and volunteers, the
GRANTEE's liability hereunder shall be only to the extent of the GRANTEE's
negligence. It is further specifically and expressly understood that the
indemnification provided herein constitutes the GRANTEE's waiver of
immunity under Title 51 RCW, solely for the purposes of this indemnification.
This waiver has been mutually negotiated by the parties.
The provisions of this Section shall survive the expiration or termination of this
Public Ways Agreement.
Exhibit A
Ordinance No. 5708
Page 6
Notwithstanding any other provisions of this Section, the GRANTEE assumes
the risk of damage to its facilities located in the CITY's public ways, rights-of-
way, easements, and property from activities conducted by the CITY, its elected
and appointed officials, officers, employees, agents, representatives, engineers,
consultants, and volunteers. The GRANTEE releases and waives any and all
claims against the CITY, its elected and appointed officials, officers, employees,
agents, representatives, engineers, consultants, and volunteers, for damage to
or destruction of the GRANTEE's facilities caused by or arising out of activities
conducted by the CITY, its elected and appointed officials, officers, employees,
agents, representatives, engineers, consultants, and volunteers, in the public
ways, rights-of-way, easements, or property subject to this Public Ways
Agreement except to the extent any such damage or destruction is caused by or
arises from the sole negligence or any willful or malicious action on the part of
the CITY, its elected and appointed officials, officers, employees, agents,
representatives, engineers, consultants, and volunteers. The GRANTEE further
agrees to indemnify, hold harmless and defend the CITY against any claims for
damages, including, but not limited to, business interruption damages and lost
profits, brought by or under users of the GRANTEE's facilities as the result of
any interruption of service due to damage or destruction of the user's facilities
caused by or arising out of activities conducted by the CITY, its elected and
appointed officials, officers, employees, agents, representatives, engineers,
consultants, and volunteers, except to the extent any such damage or
destruction is caused by or arises from the sole negligence or any willful or
malicious actions on the part of the CITY, its elected and appointed officials,
officers, employees, agents, representatives, engineers, consultants, and
volunteers.
SECTION 8. INSURANCE.
GRANTEE shall, as a condition of this Public Way Agreement, secure and
maintain the following liability insurance policies insuring both the GRANTEE
and the CITY, and its elected and appointed officers, officials, agents,
employees, representatives, engineers, consultants, and volunteers as
additional insureds against claims for injuries to persons or damages to
property which may arise from or in connection with the exercise of the rights,
privileges, and authority granted to the GRANTEE:
Exhibit A
Ordinance No. 5708
Page 7
A. Comprehensive general liability Insurance, written on an occurrence
basis, with limits not less than:
(1) $5,000,000.00 for bodily injury or death to each person;
(2) $5,000,000.00 for property damage resulting from anyone
accident; and
(3) $5,000,000.00 for all other types of liability.
B. Automobile liability for owned, non-owned and hired vehicles with a
limit of $3,000,000.00 for each person and $3,000,000.00 for each accident;
C. Worker's compensation within statutory limits and employer's liability
insurance with limits of not less than $1,000,000.00;
D. Comprehensive form premises-operations, explosions and collapse
hazard, underground hazard and products completed hazard with limits
of not less than $3,000,000.00;
E. The liability insurance policies required by this Section shall be
maintained by the GRANTEE throughout the term of this Public Ways
Agreement and such other period of time during which the GRANTEE is
operating without a Public Ways Agreement hereunder, or is engaged in
the maintenance or removal of its telecommunications facilities. The
GRANTEE shall provide an insurance certificate, together with an
endorsement naming the CITY, and its elected and appointed officers,
elected officials, agents, employees, representatives, engineers,
consultants, and volunteers as additional insureds, to the CITY prior to
the commencement of any work or installation of any utility or
telecommunications facilities pursuant to this Public Ways Agreement.
Any deductibles or self-insured retentions must be declared to and
approved in writing by the CITY prior to the Public Ways Agreement
becoming effective. Payment of deductibles and self-insured retentions
shall be the sole responsibility of the GRANTEE. The insurance
certificate required by this Section shall contain a clause stating that
coverage shall apply separately to each insured against whom claim is
made or suit is brought, except with respect to the limits of the insurer's
liability. The GRANTEE's insurance shall be primary insurance as
Exhibit A
Ordinance No. 5708
Page 8
respects the CITY, its officers, elected officials, employees,
representatives, engineers, agents, consultants, and volunteers. Any
insurance maintained by the CITY, its officers, elected officials,
employees, representatives, engineers, agents, consultants, and
volunteers shall be in excess of the GRANTEE's insurance and shall not
contribute with it;
F. In addition to the coverage requirements set forth in this Section, each
such insurance policy shall contain the following endorsement:
"It is hereby understood and agreed that this policy may not be canceled
nor the intention not to renew be stated until 60 days after receipt by the
CITY, by registered mail, (return receipt requested) of a written notice
addressed to the City Clerk of such intent to cancel or not to renew."
G. Within 30 days after receipt by the CITY of said notice, and in no event
later than 15 days prior to said cancellation or intent not to renew, the
GRANTEE shall obtain and furnish to the CITY replacement insurance
policies meeting the requirements of this Section. Any lapse in the
required insurance coverage shall be cause for termination of this Public
Ways Agreement.
SECTION 9. NON-EXCLUSIVE.
The rights and privileges herein granted shall not be deemed exclusive and the
right is hereby reserved to the CITY to grant to any other person, company,
corporation or association, or entity, including the CITY, the right to exercise
the rights and privileges herein granted.
SECTION 10. POLICE POWERS.
Nothing herein shall be deemed to affect the CITY'S ability to exercise its police
powers. Further, nothing shall be deemed to grant GRANTEE vested rights or
franchise rights.
Exhibit A
Ordinance No. 5708
Page 9
SECTION 11. MODIFICATIONS OF TERMS AND CONDITIONS.
The CITY and GRANTEE hereby reserve the right to alter, amend or modify the
terms and conditions of this Agreement upon written agreement by both
parties to such alteration, amendment or modification.
SECTION 12. RENEWAL OF AGREEMENT.
This Agreement shall be automatically renewed for additional five-year periods
upon payment of the renewal fee, unless either the CITY or GRANTEE
provides written notice of its intent not to renew the Agreement 120 days prior
to January 1st of said renewal year. In the event that GRANTEE shall decide to
offer at any time Local Service from its equipment, Facilities, or underground
fiber optic cable system to business and/ or residential customers within
Auburn's incorporated area, it shall apply for and obtain a franchise agreement
from the CITY prior to the offer of or delivery of such Local Services. In order
to assure adequate time to apply for and negotiate the terms of such a franchise,
GRANTEE shall provide written notice of its intent to offer Local Services and
submit an application for franchise 120 days prior to the desired date of
commencing Local Service. If a franchise is granted by the CITY, this
Agreement shall terminate and the use, operation, and maintenance of such
equipment, Facilities, and underground fiber optic cable system, and all related
appurtenances, shall be subject solely to the provisions of said franchise.
SECTION 13. TERMINATION.
The CITY and GRANTEE recognize the paramount public interest in the right-
of-way subject to this Agreement. Should the public interest, determined by the
CITY, require consideration of termination of this Agreement, such procedures
as outlined in Title 20, Auburn CITY Code shall control termination.
SECTION 14. VALIDITY OF TERMS.
If any terms, provisions, condition, or portion of this Agreement shall be held to
be invalid or unconstitutional for any reason, the CITY may, at its own option,
deem the entire Agreement to be affected and thereby nullified. However, in
Exhibit A
Ordinance No. 5708
Page 10
the event of said determination of invalidity of any part of this Agreement, the
CITY may elect to treat the portion declared invalid as severable and enforce
the remaining portions of this Agreement until such time as a new Agreement
is negotiated and approved by both parties. The CITY does not, by executing
this Agreement, waive any rights to later require a franchise agreement under
CITY Code in the event GRANTEE shall decide to offer point services from its
equipment, Facilities, or underground fiber optic cable system to CITY area
businesses and/ or residential customers.
SECTION 15. NON-TRANSFERABLE.
The rights granted by this Agreement inure to the benefit of GRANTEE, and
any parent, subsidiary, Affiliate, heir, successor, or assigns now or hereafter
existing. GRANTEE may assign its rights under this Agreement to a parent,
subsidiary, Affiliate, heir, or successor so long as (1) such parent, subsidiary,
Affiliate or successor, assumes all obligations of GRANTEE hereunder; (2) such
parent, subsidiary, Affiliate, heir or successor is bound to the same extent as
GRANTEE hereunder; and (3) the CITY receives sufficient evidence of such
agreement and notice to confirm that the above conditions are satisfied. The
rights shall not be assignable to parties other than a parent, subsidiary, or
Affiliate, or successor without the express, written consent of the governing
body of the CITY, which shall be determined by the CITY within 60 days. Any
consent is to be evidenced by written agreement with the CITY that fully recites
the terms and conditions, if any, upon which consent is given.
SECTION 16. ENFORCEMENT.
If the CITY seeks enforcement of any terms or conditions of this Agreement in
court, or if a lawsuit is instituted with respect to this Agreement, GRANTEE
agrees to pay the CITY'S reasonable attorney's fees and costs and other allied
expenses incurred by the CITY regarding said enforcement or lawsuit if the
CITY is the substantially prevailing party.
Exhibit A
Ordinance No. 5708
Page 11
SECTION 17. GRANTEE AVAILABILITY.
GRANTEE shall be available to the CITY 24 hours a day, 7 days a week,
regarding problems or complaints related to GRANTEE's Telecommunication
System. The CITY may contact (Price Williams/Project Manager) at (406) 495
9314 at which a GRANTEE employee can be reached twenty-four (24) hours a
day, seven (7) days a week regarding such problems or complaints.
SECTION 18. EFFECTIVE DATE.
This Agreement shall take effect and be in force upon execution by the
undersigned CITY official and the authorized authority of GRANTEE.
SECTION 19. NOTICE.
Unless otherwise expressly agreed between the parties, every notice or
response to be served upon the CITY or GRANTEE shall be in writing, and
shall be deemed to have been duly given to the required party five (5) business
days after having been posted in a properly sealed and correctly addressed'
envelope by certified or registered mail, postage prepaid, at a Post Office or
branch thereof regularly maintained by the U.s. Postal Service.
The notices or responses to the CITY shall be addressed as follows:
City Clerk
25 West Main Street
Auburn, W A 98001-4998
With a copy to:
City Attorney
CITY of Auburn
25 West Main Street
Auburn, W A 98001-4998
Exhibit A
Ordinance No. 5708
Page 12
The notices or responses to Touch America, Inc. shall be addressed as follows:
Touch America, Inc.
Attn: Director, Operations/Maintenance
130 North Main Street
Butte, MT 59701
The CITY and GRANTEE may designate such other address or addresses from
time to time by giving notice to the other.
PASSED BY THE CITY COUNCIL OF THE CITY OF AUBURN,
WASHINGTON, AT ITS REGULAR MEETING ON THE Zt~ DAY OF
~~('~ \\t,-b.¿', , 2002.
CI~=
Mayor PETE LEWIS
25 W. Main
Auburn WA 98001-4998
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Date
Attest:
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City Clerk
MPtjST
DAN HElD,
City Attorney
Exhibit A
Ordinance No. 5708
Page 13
Acknowledged and Accepted by:
TQUCH AMERICA, INC.:
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STATE OF vrA~HII~GfON )
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On this \ Î'µ' day of bu 1 ~ XA 2~02, before me, the undersig~d, a .
N~tary Pu~lic in and (or the State rfm ~(~~ personally appeared ~ LJ~~ Q.~
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executed the within and foregoing instrument, and acknowledged said instrument to
be the free and voluntary act and deed of said corporation for the uses and purposes
therein mentioned, and on oath stated that he is authorized to execute said instrument
on behalf of said corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
date hereinabove set forth.
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Exhibit A
Ordinance No. 5708
Page 14
STATEMENT OF ACCEPTANCE
GRANTEE itself, its successors and assigns, hereby accepts and agrees to
be bound by all terms, conditions and provisions of the Public Ways Agreement
granted pursuant to Ordinance No. 5702, attached hereto and incorporated
herein by this reference.
By:
Name:
Title:
Date:
Attached hereto is a copy of the executed Ordinance approving the
execution of the Public Ways Agreement by the CITY and a corporate
resolution or corporate secretary certificate therefor duly executed and
approving this Statement of Acceptance, the execution thereof and authorizing
the officer executing this Statement of Acceptance to do so.
Exhibit A
Ordinance No. 5708
Page 15
ATTACHMENT 1
CITY OF AUBURN, WASHINGTON
PUBLIC WAY AGREEMENT WITH TOUCH AMERICA, INC.
LOCATION AND IDENTIFICATION OF RIGHTS GRANTED
The CITY grants TOUCH AMERICA, INC. the right to construct and maintain
an underground fiber optic cable system across CITY street right-of-way. The
Touch America, Inc. facilities will be installed within a portion of Puget Sound
Energy's 100 foot wide fee owned right of way commonly referred to as the Puget
Sound Electric Railway Right of Way lying in Sections 1, 12, 13 and 24 in Township 21
North, Range 4 East, W.M.; Section 36 in Township 22 North, Range 4 East, W.M.; all
in King County, Washington. This installation will cross CITY right-of-way at 15th
Street Southwest, West Main Street, 15th Street Northwest, 29th Street Northwest, 37th
Street Northwest, South 285th Street and South 277th Street.
Exhibit A
Ordinance No. 5708
Page 16
ATTACHMENT 2
TERMS AND CONDITIONS OF PUBLIC WAY AGREEMENT
TOUCH AMERICA, INC.
1. A pre-construction conference shall be required at least 24 hours prior to
commencing work within CITY right-of-way. (Seven days notice
required to schedule conference. Call (206) 931-3010 for the Contracts
Administrator or the Construction Manager.)
2. GRANTEE shall notify all affected property owners, in writing, a
minimum of seven days prior to starting construction in the area.
3. Construction shall be in compliance with plans submitted to and
approved by the CITY Department of Public Works.
4. GRANTEE, its successors and assigns, is given permission to enter upon
the right-of-way or public place for the purpose of performing the work
described in a construction permit which must be approved by the City
Engineer or his/her designee.
5. After the installation, operation, maintenance, or removal of a utility or
Facility the GRANTEE shall restore all rights-of-way and public places to
the same or equivalent condition that existed prior to work
commencement. All such work must meet the approval of the City
Engineer.
6. In the event that any damage of any kind, as determined solely by the
CITY, to the CITY'S property or rights-of-way is caused by the
GRANTEE in the course of performing work authorized by this
Agreement, the GRANTEE will repair said damage at its sole cost and
expense. Repair work shall begin without delay, as directed by the
CITY, and continue without interruption until completed. If damage is
extensive, the time allowed for repair will be prescribed by the City
Engineer and/or his/her designee. Failure to properly restore any
damages within 30 days notice will be referred to the City Attorney
under Section 16. entitled "ENFORCEMENT".
7. The City Engineer or his/her designee may at any time, do, order, or
Exhibit A
Ordinance No. 5708
Page 17
have done any and all work considered necessary to restore to a safe
condition any area left by the GRANTEE in a condition dangerous to life
or property. The GRANTEE shall be notified of any substandard
condition requiring correction by the CITY'S Construction Manager, and
upon failure of the GRANTEE to make said correction within the specific
time frame allowed, the CITY shall perform the correction and the
GRANTEE shall pay to the CITY all costs of such work, labor and
materials. If GRANTEE fails to compensate the CITY for actual costs, the
CITY will exercise the performance bond to pay for any work of
emergency nature.
8. When the CITY deems it advisable to change the alignment or grade of
any street or right-of-way or public place or structure by widening,
grading, re-grading, paving, improving, altering or repairing same, the
CITY and the GRANTEE will diligently pursue alternative methods of
achieving the CITY'S preferred alignment or grade of subject structure
including, but not limited to, sharing engineering expenses. If the
GRANTEE has no alternatives acceptable to the CITY, the GRANTEE
shall, at its own cost and expense, raise, lower, move, change or
reconstruct such installations to conform with the plans of work ordered
by the CITY according to the time schedules described in Section 4 of this
Agreement titled "RELOCATION OF EQUIPMENT".
9. All provisions, conditions, requirements and regulations herein
contained shall be binding upon the heirs, successors and assigns of the
GRANTEE and all privileges of the GRANTEE shall be given to such
heirs, successors and assigns as if they were specifically mentioned.
10. The CITY and GRANTEE recognize the paramount public interest in the
right-of-way subject to this Agreement. Should the public interest,
determined by the CITY, require consideration of termination of this
Agreement, such procedures as outlined in Title 20, Auburn CITY Code
shall control termination.
11. GRANTEE, by accepting permits pursuant to this Agreement, agrees to
obtain information from all utility departments and existing franchises
regarding location and current status of their installations before starting
work. GRANTEE shall notify private property owners adjoining, or in
proximity to the right-of-way, including existing franchises, in writing
Exhibit A
Ordinance No. 5708
Page 18
when such property is exposed to the possibility of injury or damage
through performance of work by GRANTEE. The GRANTEE shall make
all advance arrangements necessary to protect such property and/ or
utility from injury or damage.
12. The issuance of this Agreement to the GRANTEE does not in any way
relieve GRANTEE from compliance with any other applicable laws in
performing the work subject to this Agreement.
13. All road crossings shall be reviewed independently for feasibility of
open cuts as opposed to a push or bore.
14. GRANTEE shall, to the extent practicable, maintain a minimum five (5)
feet horizontal separation and one (1) foot vertical separation from any
and all CITY utilities. An accuracy of one (1) foot per one hundred (100)
feet horizontal and vertical control will be required in the certified
record drawings provided to the CITY at completion of project.
15. GRANTEE shall, within 60 days after completion of construction,
provide to the CITY a computer disc containing record drawings in
AutoCAD drawing file format and a complete set of plans, drawn to
scale and certified to the CITY as accurately depicting the horizontal and
. vertical location and configuration of all Facilities constructed pursuant
to the agreement. The City Engineer shall have the discretion to
prescribe the format and/ or media of said record drawings, consistent
with CITY codes and policies.
16. Contractors or agents of GRANTEE shall obtain any and all other
necessary permits, licenses, and approvals as required by law.
17. GRANTEE shall provide and maintain a means of locating said
improvements upon request in accordance with RCW 19.122.
Exhibit A
Ordinance No. 5708
Page 19