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HomeMy WebLinkAboutITEM III-ACITY OF AGENDA BILL APPROVAL FORM * WASHINGTON Agenda Subject: Date: Ordinance No. 6325 August 17, 2010 Department: Attachments: Budget Impact: Public Works Ordinance No 6325, Exhibit A, $0 Ordinance No. 5952 Administrative Recommendation: City Council to introduce and adopt Ordinance No. 6325. Background Summary: 360 Networks (USA) Inc. has applied for renewal of their current Public Way Agreement No. 05-52 which was authorized by Ordinance No. 5952 (please see attached document) and is set to expire on October 3, 2010. This agreement is for existing fiber optic conduit in the right of way along West Valley Highway between the north and south city limits. This fiber optic conduit does not service any customers inside the city limits. Per the terms of the current agreement 360 Networks (USA) Inc. may apply for up to four (4) additional five year term renewals with this renewal being the first of four. The current Public Way Agreement was reviewed by city staff and the applicant and it was determined that the agreement still meets the needs of the City and the applicant with only minor amendments to the agreement to reflect current Grantee contact information and remaining renewal terms. Ordinance No.6325 amends the current agreement to reflect these changes and authorizes 360 Networks (USA) Ines fiber optic conduit to remain in the right of way for an additional five year term per the conditions set forth in PWA 05-52 upon filing with the City Clerk a Statement of Acceptance which is marked "Exhibit A" W1004-4 Reviewed by Council & Committees: Reviewed by Departments & Divisions: ❑ Arts Commission COUNCIL COMMITTEES: ❑ Building ❑ M&0 ❑ Airport ❑ Finance ❑ Cemetery ❑ Mayor ❑ Hearing Examiner ❑ Municipal Serv. ❑ Finance ❑ Parks ❑ Human Services ®Planning & CD ❑ Fire ❑ Planning ❑ Park Board ®Public Works ®Legal ❑ Police ❑ Planning Comm. ❑ Other ®Public Works ❑ Human Resources Action: Committee Approval: ❑Yes ❑No Council Approval: ❑Yes ❑No Call for Public Hearing I l Referred to Until I l Tabled Until I I Councilmember: Wagner Staff: Dowdy Meeting Date: October 4, 2010 Item Number: k t + •1~ ORDINANCE N0.6325 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF AUBURN, WASHINGTON, RELATING TO A PUBLIC WAY AGREEMENT WITH 360NETWORKS (USA) INC.; AUTHORIZING THE RENEWAL OF PWA 05-52 ANDAMENDING THETERMS OFTHEAGREEMENT WHEREAS, Grantee has applied to the City for renewal of PWA 05-52, which was authorized by Ordinance No. 5952; and WHEREAS, the City has reviewed the Grantee's renewal application and determined that renewal of the Public Way Agreement authorized by Ordinance No. 5952 with minor amendments is in the best interest of the City and the citizens of Auburn, NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF AUBURN, WASHINGTON, DO ORDAIN as follows: Section 1. The City approves Grantee's application for renewal with the amendments and under the conditions set forth in this ordinance. Section 2. Section 1, "Notice" of Ordinance No. 5952 is amended to read as follows; Grantee: R^" R^;;°-~^nMitchell Merr~rman uv Attn: Director of Right-of Way 360networks (USA) inc. S2G;7 r^~~ (`rooU ~`irnlo C+o 1 G;f1 VV 1 VVUI ViLVi\ V11 VIL, VLV. 1"VV 370 Interlocken Blvd., Suite 600 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i ^~1.['„~iia ~n Qnn~~groomfield CO 80021 LVU~VV111V, \./tJ VVVLI , huh ~r~~~,c~,~n~~~~n W'i7'IJ'. r✓V~ v~V1 I'~VVV . 1 1'1~ mi±c"°!!Mitchell.m~r; ym~nM_err~m_an 360.net www.360networks.com ~~~~~1'~~303-854-5271 (o) 303-854-5411 (f} Section 3. Section3, "Terms of Agreement" of Ordinance No. 5952 is amended to read as follows 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 Ordinance No. 6325 July 29, 2010 Amendatory Renewal PWA 10-10 Page 1 of 3 Agreement for up to four (4;three (3} additional five (5) year periods 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. Section 4. Acceptance of Amendments A. This Amendment and any rights granted hereunder shall not become effective for any purpose unless and until Grantee files with the City Clerk the Statement of Acceptance, attached hereto as Exhibit "A", and incorporated by reference. The date that such Statement of Acceptance is filed with the City Clerk shall be the effective date of the renewal, which the City has assigned "PWA 10-10". B. Should the Grantee fail to file the Statement of Acceptance with the City Clerk within 30 days after the effective Date of the ordinance approving the Amendatory Renewal, said renewal and corresponding agreement will automatically terminate and shall be null and void. Section 5. Implementation The Mayor is hereby authorized to implement such administrative procedures as may be necessary to carry out the directions of this legislation. Section 6. Severability The provisions of this ordinance are declared to be separate and severable. The invalidity of any clause, sentence, paragraph, subdivision, section or portion of this ordinance, or the invalidity of the application thereof to any person or circumstance shall not affect the validity of the remainder of this ordinance, orthe validity of its application to other persons or circumstances. Section Effective date This Ordinance shall take effect and be in force five days from and after its passage, approval and publication as required by law. Ordinance No. 6325 July 29, 2010 Amendatory Renewal PWA 10-10 Page 2 of 3 INTRODUCED: PASSED: APPROVED: Peter B. Lewis MAYO R ATTEST: Danielle E. Daskam, City Clerk APPROVED AS TO FORM: Daniel B. Heid, City Attorney Published: Ordinance No. 6325 July 29, 2010 Amendatory Renewal PWA 10-10 Page 3 of 3 EXHIBIT "A" STATEMENT OF ACCEPTANCE 360Networks (USA) Inc., for itself, its successors and assigns, hereby accepts and agrees to be bound by all terms, conditions and provisions of the Public Way Agreement attached hereto and incorporated herein by this reference. [Grantee] By: Date: Name: Title: STATE OF ) )ss. COUNTY OF ) On this day of , 2010, before me the undersigned, a Notary Public in and for the State of ,duly commissioned and sworn, personally appeared, of ,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 NOTARY PUBLIC in and for the State of ,residing at MY COMMISSION EXPIRES: Ordinance No. 6325 August 17, 2010 Amendatory Renewal PWA 10-10 Page 1 of 1 oRDINANCE Na. ~ ~ 5 ~ AN RDINAI~E ~i= THE CITY CCUIVCIL ~F THE CITY OF AUBURN, vVAHINT~N, APPR~VIN A PUBLiC vVAY AGREEMENT WITH 88~NETVl1~l~l~ This Public vVay Agreement is entered into by and between the City of Auburn, vUashingtan, a municipal corporation ("City"~ and 8gnetwark ~~A} inc., a Nevada corporation ~"grantee"~. vVHEREA, grantee has applied to the City for anon-exclusive Public vVy Agreement far 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, and remove its facilities in, on, upon, clang and~or across thane rights}-of- way; and vI~HEREA, the City has reviewed the grantee's application and determined that the locatian of grantee's facilities v~rithin the requested right~s~-~f-vuay is in the best interest ~f the City and the citizens of Auburn, I~OVV, THEREFORE, THE CITY COUNCIL aF THE CITY aF AI~BURN, vI~AHINCT~N, D~ aRDAIN as follows: In consideration of the mutual benefits and conditions set Earth below, including acceptance and agreement of the Public v~~y Agreement by the grantee in the form suatantially as set Earth in Exhibit i`C" hereto, the City of Auburn agrees and ratifies acceptance to the Public vuay Agreement, as follows: e~tion 1. N~ti~e A. Uvritten notices to the parties shall be sent by certified mail to the following addresses, unless a different address shall be designated in writing and delivered to the other parley. City: Right-of-vVay Manager City of Auburn 5 vVest Main street Au bu rn, vVA 988 ~ -4998 Telephone; ~~-3~~~; Fax: ~~5~ g~-3g4S with a copy to: City lerlt City of Auburn ~5 vl~et Main street Auburn,1NA 9888 ~-4998 ~r~inance N~. Version Date: 9f~1~~U5 9:44 AM ~~JB~.I 1NAY AGREEMENT Page grantee: Bab Boyeson Attu; ~irectar of Right-of-UVay 8~7 Baal creek circle, Bte. ~ Louisville, ~ 5~~27 bob.boyeson~3bg.net; itche I I. merryman ~ Gg. net ph. 3g~-85~-~1~ B. Any changes to the aborre~tated grantee information shall be sent to the pity's fight-of-UV~y lUlanar, v~ith copia to the pity lerl~, rfer~ncing the title of this agreement. The above-stated grantee voice and fax telephone numbers shall b staffed at least during normal business hours, Pacifictime zone. ecti~rr grant of Right t~ Use Public 1IVay A. Subject to the terms and conditions stated herein, the pity grants t~ the grantee general permission to enter, use, and accupy the rights}-of-vuay specified in exhibit "A,'" attached hereto and incorporated by reference the "`Public 1Nay"}. B. The grantee i authorized to install, remove, construct, erect, operate} rnaintain, relocate and repair the facilities specified in E~chibit "B," attached hereto and incorporated by reference, and all necessary appurtenances thereto, ~"grantee Facilities"} for provision of the services specified in Exhibit "B" {"grantee Services"} in, along, under and across the Public V1~ay, for the sole purpose of providing commercial and ~uhalesale utility ar telecommunications services to persons or areas outside the pity. This Public 1~ay Agreement does not authorize the use of the Public VIlay for any facilities or services other than grantee Facilities and grantee Services, and it extends na rights or privilege relative to any facilities ar services of any type, including grantee Facilities and grantee Services, eleuvher ~rithin the pity. The foregoing shall not affect grantee's right to grant an indefeasible right of use, lease or other instrument transferring an interest in excess capacity in the grantee Facilities to third parties; provided, such instrument shall exclude said third parties from any right to operate, occupy, physically access, ar in any other gay exert control over any porkivn of the grantee Facilities. D. This Public llllay Agreement is non-exclusive and does not prohibit the pity from entering into other agreements, including Public Vl~ay Agreements, impacting the Public V~lay, unless the pity determines that entering into such agreements interferon v~ith grantee's right set firth herein. r ~ + . . . . . . . . r w . . . . . . . r ~rdlnanCe No. 5~~2 Version Date. ~1~412~05 9;44 Ahll PUBLIC 1NAYAREEMENT Pa~e2 E, Except as explicitly set forth herein, this Public Icy Agreement does not waive any rights that the pity has or may hereafter acquire with respect to the Public vUay or any other pity roads, rights-af-way, property, or any portions thereof. This Public 11Vay Agreement shail be subject to the power of eminent domain, and in any proceeding under eminent domain, the grantee acknowledges its use of the Publio vhf ay shall have no value. The pity reserves the right to change, regrade, relocate, abandon, ar vacate the Public INay. If, at any time during the term of this Public llllay Agreement, the pity vacates any portion of the Public 1Nay, the pity shall reserve an easement for public utilities within that vacated portion, pursuant to RvV ~5.~.04, within which the grantee may continue to operate the Orontes Facilities under the terms of this Pubic Uvay Agreement far the remaining period set forth under ectian . The grantee agrees that its use of Public 1Ny shall at all times be subordinated to and subject to the pity and the public's need for municipal infrastructure, travel} ~ and access t~ the Public v~lay, except as may be otherwise required by Iaw. H. should the grantee seek to use the Public vVay to provide services, including grantee services, to pity residents, the grantee shall apply for, obtain, and comply with the terms of a pity franchise agreement fvr such use. eti~n Terrn ~f Agreement A. This Public vVayAgreement shall run for a period of five ~5~ gears, from the date of execution specified in Section B. Renewal option of Term: The grantee may renew this Public Inlay Agreement far up to four ~4} additional five ~5} year periods upon submission and approval of the application specified under A ~0.44.~g, as it now exists or is amended, within the timeframe set forth therein currently ~ 80 to ~ 2g days prior tv expiration of the then-current term. Any materials submitted by the grantee fvr a previous application may be considered by the i#y in reviewing a current application, and the grantee shall only submit those materials derned necessary by the pity to address changes in the grantee Facilities ar grantee services, or to reflect specific reporting periods mandated by the A~. section Definitions For the purpose of this agreement "A" means the Auburn pity fade. . . ~ . ~ . r ~ . . . . . . . r ~ . . ~rdinan~e No. ~~5~ version Date: ~l2DJ~~~~ x:44 AM PUBLIC vIfAY ARE~~I~NT Page3 "Er~ergency" means a condition of imminent dangerto the health, safety and welfare of persons or property located within the pity including, without limitation, damage to persons or property from natural consequences, such as storms, earthquakes, riots, acts of #errorism or wars. "Excess capacity" means the volume yr capacity in any existing or future duct, conduit, rr~anhole, handhole or other utility facility within the public way that is or will be available for use for additional telecommunications facilities. "Maintenance or Maintain" shall mean examining, testing, inspecting, repairing, maintaining and replacing the existing bran#ee Facilities or any park thereof as required and necessary for safe operation. "Relocation" means permanent movement of grantee facilities required by the pity, and not temporary or incidental r~ovement of such facilities, or other revisions grantee v~rould accomplish and charge to third parties without regard to municipal request. "Rights-of~vllay" means the surface and the space above and below streets, roadvwrays, highways, avenues, courts, lanes, alleys, sidewalks, easements, rights-of- waysand similar public properties and areas. section Acceptance of Public ~1IIay Agreement A. This Public vllay Agreement, and any rights granted hereunder, shall not become effective for any purpose unless and until grantee files with the pity clerk } the Statement of Acceptance, attached hereto as Exhibit and incorporated by references all verifications of insurance coverage specified under Section ~ b, and the financial guarantees specified in Section ~ collectively, "Public Ilvay Acceptance"}. The date that such Public I~vay Acceptance is filed vuith the pity clerk shall be the effective date of this PublicllvayAgreement~ B. Should the grantee fail to file the Public vvay Acceptance with the pity clerk within ~D days after the effective date of the ordinance approving the Public vl#ay Agreement, said agreement will automatically terminate and shall b null and void. section Construction and Maintenance A. The grantee shall apply for, obtain, and comply with the terms of all permits required under ACS chapter ~~.~4 for any work done upon grantee Facilities. grantee shall comply with all applicable pity, State, and Federal codes, rules, regulations, and orders in undertaking such work, ~vhich shall be done in a thorough and proficient manner, ~rd~nance ND, 59~ Version Date: ~1~01200 AM PUBLIC INAY AGREEMENT Page4 I B. Grantee agrees to coordinate its activities with the pity and all other utilities located within the Public Vvay. The City expressly reserves the right to prescribe how and where Grantee Facilities shall be installed v~rithin the Public vvay end may from time to tire, pursuant to the applicable sections of this Public Vvay Agreement, require the removal, relocation andlor replacement thereof in the public interest and safety at the expense of the Grantee, provided that, in the event such rerr~oval, relocation andlor replacement is far the primary purpose of accommodating a party other than the City, such private party shall pay the expenses. Before commencing any work within the Public Vvay, the Grantee shall cer~ply with the one Number Locator provisions of RUV Chapter ~ . ~ to identify existing utility infrastructure. ecti~n Repair and Emer~ency'ork In the event of an emergency, the Grantee may commence such repair and emergency response worl~ as required under the circumstances, provided that the Grantee shall ratify the pity Right-of-VlJay Manager in writing a promptly as possible, before such repair or emergency work cornrr~ences, or a soon thereafter as possible, if advance notice is not practical. The pity may act, at any time, without priar written notice in the case of emergency. ecti~n 8, Damages to city and Third~Party Property Grantee agrees that should any of its actions under this Public Uvay Agreement impairs or damages any pity property, survey monument, or property owned by a third~parky, Grantee will restore, at its own cost and expense, said property to a safe canditivn. such repair work shall be perfarmed and completed to the satisfaction of the pity Engineer. ecti~n Location Preference A. Any structure, equipment, appurtenance or tangible property of a private utility, other than the Grantee's, which was installed, constructed, completed or in place priar in time to Grantee's applicatian for a permit to construct or repair Grantee Facilities under this Public ~vay Agreement shall have preference a 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, equiprr~ent, appurtenances or tangible property of an earlier private 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 the City road or right~of-way. A relocating utility shall not necessitate the relacatian of another utility that otherwise . . ~ . . . . . ~ r r - w ~ ~ . . . f . ~rd~nan~ N~. 595 VBrSlon Date: 91~9~~9~ 9:44 AM PUBLIC wAYAGREEMENT Page I would not require relocation. This ectian shall not apply to any pity facilities or utilities that may in the future require the relocation of grantee Facilities. such relocatians shall be governed by section ~ 1. B. grantee shall maintain a rninirnurn underground horizontal separation of five feet from pity water facilities and ten {1 feet from above-ground pity water facilities; provided, that for development of new areas, the pity, together with grantee and other utility purveyors or authorized users of the Pubic 1IVay, will develop and follow the Public V~Jork Director's deterrr~ination of a consensus far guidelines and procedures for determining specific utility locations, subject additionally to this agreement and to a Franchise agreement, should ane became necessary Notwithstanding the foregoing, grantee shall not be required to relocate grantee Facilities pursuant to this section that are in place prior to the Effective Date of this Agreement unless such grantee Facilities present a risl~ to public safety. section ~ Grantee Infarmati~n A. Grantee agrees to supply, at no cost to the ityf such informatian as the Director of Public vVorks, or Right-of-lay Manager, find necessary to caardinate municipal functions with grantee's activities and to fulfill any municipal obligatians under state law. laid inforrr~ation shall include, at a rrrinimum; quarterly statements due on the first day of January, April, July, and October of each year detailing any changes in the inforrnatian submitted as part of grantee's Public Vvay Agreement a plication as set forth in Exhibit attached hereto and incorparated by p reference; as-built drawings of grantee Facilities; installation inventory; and naps and plans shov~ring the lacation of existing or planned facilities Within the Dity~ laid information may be requested either in hard cagy andlor electranic format, corrrpatible with the pity's data base system, as now or hereinafter axis#ing, including the ity's geographic information service ~I} data base, grantee shall Deep the Right-of~uVay Manager informed of its lang-range plans for coardination with the pity's fang-range plans. B. The parties understand that vUashington law limits the ability of the pity to shield from public disclosure any information given to the pity. Accordingly, the parties agree to work together to avoid disclosures of information which would result in economic loss or damage to grantee because of mandatory disclosure requirements to third persons. In the event the parties. cannot agree, the dispute shall be submitted to the Dity Hearing Examiner, subject to the retard before the Hearings Examiner. Notwithstanding this option, grantee shall indemnify and hold harmless the pity for any lass ar liability far casts for attorneys fees because of non- disclosures requested by grantee under 1ashington's open public records lava, provided reasonable notice and opportunity to defend was given to grantee or grantee is made aware of the pending of a request arclaim. Ordinance No. version Date; 91~~~Z~O~ 9:4~ AM PUBLl~ VIIAYAOREEMENT Page I Section 1 ~ . R~lo~a~ion, of grantee Faciiiti~s A. E~ccept ~ otheru~rise so required by lay, grantee agrees to relocate, remove, or reroute its facilities at no e~cpense or liability to the pity, and at its sole expense and liability, except as may be required by section ch. lags of X000 of the State of vVashington or further provided by Title ~ ~ Pursuant to the provisions of Section ~ 4, grantee agrees to protect and save harrr~less the pity from any customer or third-parlay ulairrr for service interruption or other losses in connection v~rith any such change, relocation, abandonment, or vacation of the Pubic ~Vay~ B, In the event that the Public IIVay shall became a Primary State H~gh~ray as provided by lar~r, the State Department of Transportation may order the grantee to perform or undertake, at its sole expenses changes to the location of grantee Facilities o that the same shall not interfere v~rith such state highv~ay and so that such facilities shall conform to such near grades or routes as maybe established. If a readjustment or relocation of the grantee Facilities i necessitated by a request from a party other than the pity, that party shall pay the grantee the actual costs thereof . Section ~ Aband~nr~ent and or Removal of grantee Facilities A. V~lithin one hundred and eighty days 80~ of expiration, revocation or termination of this Public vllay Agreement, or grantee's permanent cessation of use of the Grantee Facilities, or any portion thereof, the grantee shall, at the pity's discretion, either abandon in place or remove the affected facilities. B. The parties expressly agree that this Section shall survive the expiration, revocation or termination of this Public VUay Agreement. section ~ 3. Under~roun~ing A. The parties agree that this Public Ill~ay Agreement does not limit the pity's authority under federal lain, state laver, or the A~, to require the undergrounding of utilities. vVhenever the pity requires the undergrounding of aerial utilities in the Public 1lllay, the grantee shall underground the grantee Facilities in the manner specified by the pity Engineer, and ~rhere 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 undergraunding of grantee Facilities. common costs shall include necessary costs for common trenching and utility vaults, Fair share shall be determined in ordinance No. Version Date: 9~~OI~~05 9:44 AM PUBLIC 1NAY A~REEI~ENT Pagel comparison to the total number and sire of all ather utility facilities being undrgrounded. Section lndemnifoation aid Hold Harmless A. The Grantee shall defend, indemnify, and hold the pity and its officers, officials, agents, employees, and volunteers harmless from any and al[ costs, claims, injuries, damages, lasses, suits, or liabilities of any nature including attorneys' fees arising out of or in connection with the Grantee's performance under this Public Vlray Agreerr~ent, except to the extent such casts, claims, injuries, damages, lasses, suits, ar liabilities are caused by the negligence of the City. B. The Grantee ha[I bald the pity harmless fram any liability arising cut of or in connection with any damage or lass to the Grantee Facilities caused by maintenance andlor construction work performed by, ar on behalf af, the City within the Public way ar any other City road, right-of-way, or other property, e~ccept to the extent any such damage ar loss is directly caused by the negligence of the pity, or its agent performing such work. . The Grantee acknowledges that neither the City nor any other public agency with responsibility for fire fighting, emergency rescue, public safety or similar duties within the pity 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 far the provision of such services. The Grantee shall hold the pity harmless from any liability arising out of or in connection with any damage or lass to the Grantee far the pity's failure ar inability to provide such services, and, pursuant to the terms of section ~4{A}, the Grantee shall indemnify the City against any and all thirdWparty casts, claims, injuriest damages, lasses, suits or liabilities based on the pity's failure or inability to provide such services D. Acceptance by the City of any work performed by the Grantee shall not be grounds for avoidance of this etion~ Section ~ insurance A. The Grantee shall procure and maintain for the duration of the Agreement, insurance against claims far injuries to persons or damage to property which may arise from or in connection with the performance of the work hereunder by the Consultant, its agents, representatives, or employees in the amounts and types set forth below: ~ , Autamabile Liability insurance covering all owned, non-owned, hared, and leased vehicles with a rninirr~urn combined single limit far bodily injury and property dar~age of 1,ggg,ggg per accident. coverage shall be written on - ~ ~ . . . . . ~ ~ . . r r r r t w w rd~nance No~ 5952 Version Date: 912912~D~ 944 AEI PUBLIC INAY AGREEMENT PageB I insurance Benriee Office (Ion form A gg a~ or substitute farm providing equivalent liability coverage. if necessary, the policy shall be endorsed to provide contractual liability caverage. omrnercial General Liability insurance with lir~r~its no less than ~,aa~,aa~ each occurrence, ~,~gg,g~~ general aggregate and a ~,ggO,gOg products-completed aperations aggregate limit. Coverage shall be written on ISO occurrence form ~ ag g~ and shall cover liability arising from premises, aperations, independent contractors, products~completed operatian, stop gap liability, and personal injury and advertising injury and liability assumed under an insured contract. The ammercial General Liability insurance shall be endorsed to provide the Aggregate Per Project Endorsement IBO fora G ~5 ~ 1 ~ 85+ There shall b no endorsement or modification of the commercial General liability insurance far liability arising from explosion, collapse, or underground property damage. The pity shall be named an additional insured under the Grantee's Oamrr~rcial General Liability insurance polity vuith respect to the work performed under this Public v1~ay Agreement using I~ Additional insured Endorsement ~a ~ g ~ ~ g~ and Additional Insured-Completed Operations endorsement ~ ~ 1 g g~ or substitute endorsements providing equi~ralent caverage, Professional Liability insurance with limits na less than ~,a~g,aaa per claim for all professional employed or retained Grantee to perform services under this Public vllay Agreement. 4. vVorker' Gar~pensatian caverage as required by the Industrial Insurance lags of the State of washington~ B. The insurance policies are to contain, or be endorsed to contain, the follo~ving provisions for Automobile Liability, Professional Liability, and commercial General Liability insurance: 9. The Grantee}s insurance coverage shall b prirr~ary insurance as respects the Oity. Any insurance, self-insurance, ar insurance gaol caverage maintained by the City shall be in excess of the Grantee's insurance and shall not contribute with it. The Grantee's insurance shall be endorsed to state that coverage shall not be cancelled by either party e~ccept after thirty ~D~ days' prior uuritten native by certified mail, return receipt requested, has been given to the City. G, Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M. Best rating of not less than A:UII. 1lerification of Ooverag. Grantee shall furnish the Oity v~rith documentation of insurer's A.M. Best rating and with original certificates and a copy of arnendatary endorsements, including but not necessarily limited to the additional ordinance No. 11~rsion Date; 9J~~1~~~~ ~:~4 AM PUBLiC VIIAY AGREEMENT Page9 I insured endorsement, evidencing the 'insurance requirerr~ents of the consultant before commencement of the ~vark. E. Grantee shall have the right to self-insure any or all of the above- required insurance. Any such self insurance is subjectto approval by the pity. ectian Per#~rmance security Pursuant to AGG chapter ~a. ~ a, the Grantee shall provide the pity v~ith ~ performance band or other financial guarantee specified in ACS ectian ~a. ~ Q.~~a, in a form and substance acceptable to the pity, securing the Grantee's faithful campliance utirith the terms of this Public INay Agreement. such guarantees shall be in the amaunt of ten percent {~0°l0} of the Gity Engineer's estimate of Grantee's proposed expenditure on the Grantee Facilities, and shall in no event exceed 50,O~o. section ~ ucce~~rs and Assignees A. All the provisions, conditions, regulations and requirerner~ts herein contained shall be binding upon the successors, assigns of, and independent contractors of the Grantee, and all rights and privilegest as Drell a all obligations and liabilities of the Grantee shall inure to its successors, assignees and contractors equally as if they v~ere specifically mentioned herein ~rherver the Grantee is mentioned. B. This public vwray agreement shall not be leased, assigned or ather~rise alienated without the express consent of the pity by ordinance, v~rhich approval shall not be unreasonably v~rithheld. Grantee and any proposed assignee ar transferee shall provide and certify the follo~ring to the pity not less than g0 days prior to the proposed date of transfer: ~a~ amplete infarrnatian sefkin Earth the nature, term and conditions of the proposed assignment or transfer; {b~ All information required by the pity of an applicant far a Public V~1ay Agreement Frith respect to the proposed assignee or transferee; and, {c~ An application fee v~rhich shall be set by the City, plus any other casts actuaily and reasonably incurred by the City in processing, and investigating the proposed assignment ortransfer~ D. The foregoing shall not affect Grantee's right to grant an indefeasible right of use, lease or other instrument transferring an interest in excess capacity in the Grantee Facilities to third parties; provided, such instrument shall exclude said third parties from any right to operate, occupy, physically access, or in any other gray exert control over any pardon of the Grantee Facilities. r ~ w~ w w w w w w w w r w~ w w w Qrdl~]anC~ N0. Version Date: 91~~1~005 9.44 AM PUBLIC ~NAYAGR~EI~ENT Paged ~ I ~e~tian ~ Dispute Resalutian 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 thirty ~o} 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 ~Ilay Agreement shall be governed by and construed in accordance with the laws of the State of 1ashington. 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 Ding bounty, VlJashington. The prevailing parlor 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~udgmentr Sec~~~n 1 Enforcement and Rerned~e A. If the grantee shall willfully violate, or fail to comply with any of the provisions of this Public UVay Agreement through willful or unreasonable negligence, or should it fail to heed or comply with any notice given to grantee under the provisions of this agreement, the pity may, at its discretion, provide grantee with written notice to cure the breach within thirty ~o~ days of notification. If the City determines the breach cannot be cured within thirty days, the pity 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 v~rithin the original thirty day cure period, and diligent prosecution of the worl~ to completion. If the breach is not cured within the specified tire, or the grantee does not comply with the specified conditions, the grantee, and its successors or assignees, shall forfeit ail rights conferred hereunder, and the Public ~IVayAgreement may be revolved or annulled by the pity with no further notification. B. Should the City determine that grantee i acting beyond the scope of permission granted herein for grantee Facilities and grantee Services, the City reserves the right to cancel this Public VIJay Agreement and require the grantee to apply forr obtain, and comply with all applicable City perryits, franchises, or other City permissions for such actions, and if the Grantee's actions are not allowed under the Auburn pity Code, to compel grantee to cease such actions. r r r~ r r t w~ ordinance No. ~95~ Version date: 9~~a~2o0~ 9:4~ AM PUBLIC vUAY AGREEMENT Page~1 I ecti~n vrn~liance with Laws and regulations A. This Public vUayAgreernent is subject to, and the Grantee shall comply with ell applicable federal, state, or pity laws, regulations and policies including ell applicable elements of the Gity"s comprehensive plank affecting performance under this Public 11Vay Agreement. Furkhermore, notwithstanding any other terms of this agreement appearing to the contrary, the Grantee shall be subject to the police power of the pity 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 llllay. B. The pity reserves the right at any time, upon aforty-eight ~~8} haur written native to the Grantee, to negotiate in good faith with Grantee to emend this Public 1~11ay Agreement to conform to any hereafter enacted, amended, or adopted federal ar state statute or regulation relating to the public health, safety, end welfare, ar relating to roadway regulation, or a pity ordinance enacted pursuant to such federal or state statute or regulation The pity may terminate this Public vVay Agreement upon thirty {fig} days ~rritten notice to the Grantee, if the Grantee fails to comply v~rith such amendment or modification, ectian License, Tax and ether Dharge This Public UVay Agreement shall not e~cempt the Grantee from any future license, tax, or charge which the pity may hereinafter adapt pursuant to authority granted to it under state or federal law for revenue or as reimbursement for use and occupancy of public ways section 2~. consequential Damages Limitation Notwithstandinnny other provision cf this Agreement, in no event shall either party be liable for any special, incidental, indirect, punitive, reliance, consequential or ir~ilar damages. section everability If any portion of this Public lay Agreement is deemed invalid, the remainder portions shall remain in effect. section ~4. Titles The section titles used herein are for reference only and should not be used for the purpose of interpreting this Public vl~ay Agreement. 1I1 w-------------------- Ordinance No. 5~5~ 1lersi~n Date: 91~~J~0~5 9:~4 AM PUBLIC VI1AY AGR~~M~NT Paged ~ ' ADOPTED AND APPROVED this ~a of ~ , X005. Y DITY of Peter B. Levis Mayor ATTEST: 'eil~ Dakam pity Dlork AP ED T Fo ~ ~ Daniel i ityAttorney ~ ~ E~ ordinance No. 5a~ Version Date: 914~20~5 9:~4 AM PUBLf~ 1NAY AGREEMENT ~age13 I