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.
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PUBLiC VIIAY AGREEMENT
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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.
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Qrdl~]anC~ N0.
Version Date: 91~~1~005 9.44 AM
PUBLIC ~NAYAGR~EI~ENT
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~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.
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PUBLIC vUAY AGREEMENT
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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 ~
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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
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