HomeMy WebLinkAboutITEM VIII-B-1
AGENDA BILL APPROVAL FORM
Agenda Subject: Date:
Resolution No. 4055 Auaust8,2006
Department: I Attachments: Budget Impact:
Public Works Resolution, Aareement, and Maps $0
Administrative Recommendation:
City Council adopt Resolution No. 4055.
Background Summary:
Abovenet Communications Incorporated a Delaware Corporation with offices in White Plains, New York
and staff in Washington State maintains communication fiber in a trench in the city right-of-way on West
Valley Highway extending approximately from the northern city limits to the southern city limits. This use
of Public right-of-way was originally approved under right-of-way user permit 99-33, which has expired.
Abovenet is seeking to continue their use of the public right-of-way by means of applying for a new permit
to continue to maintain fiber in the existing trench in the city right-of-way on West Valley Highway.
Code does not require a public hearing unless the Public Works Committee recommends it.
W0821-1
03.10.9
Reviewed by Council & Committees: Reviewed by Departments & Divisions:
o Arts Commission COUNCIL COMMITTEES: o Building o M&O
o Airport o Finance o Cemetery o Mayor
o Hearing Examiner o Municipal Serv o Finance o Parks
o Human Services o Planning & CD o Fire o Planning
o Park Board l8IPublic Works [8] Legal o Police
o Planning Comm. o Other 18I Public Works o Human Resources
Action:
Committee Approval: DYes ONo
Council Approval: DYes ONo Call for Public Hearing ---1---1_
Referred to Until ---1-'-
Tabled Until -'-'-
Councilmember: Waaner I Staff: Dowdy
Meeting Date: Auqust 21, 2006 I Item Number: VIII.B.1
AUBURN * MORE THAN YOU IMAGINED
RESOLUTION NO. 4055
A RESOLUTION 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 OF AUBURN AND
ABOVENET COMMUNICATIONS, INC.
WHEREAS, Abovenet Communications Inc. has applied to the City for a
non-exclusive Public Way Agreement for the right of entry, use, and occupation
of certain public rights-of-way within the City of Auburn, expressly to install,
construct, erect, operate, maintain, repair, relocate and remove its facilities in,
on, upon, along and/or across those right(s)-of-way; and
WHEREAS, the City has reviewed Abovenet Communications'
application and determined that the location of Abovenet Communications'
facilities within the requested rights-of-way is in the best interest of the City and
the citizens of Auburn,
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF AUBURN,
KING COUNTY, WASHINGTON, HEREBY RESOLVES as follows:
Section 1. The Mayor of the City of Auburn and the Auburn City Clerk
are hereby authorized to execute a Public Way Agreement between the City of
Auburn and Abovenet Communications Inc. which agreement shall be in
Resolution No. 4055
August7,2006
Page 1 of 2
substantial conformity with the Agreement a copy of which is attached hereto,
marked as Exhibit "A" and incorporated herein by this reference.
Section 2. The Mayor is hereby authorized to implement such
administrative procedures as may be necessary to carry out the directives of
this legislation.
Section 3. This resolution shall be in full force and effect upon
passage and signatures hereon.
Dated and Signed this
day of
,2006.
CITY OF AUBURN
PETER B. LEWIS
MAYOR
ATTEST:
Danielle E. Daskam, City Clerk
Resolution No. 4055
August7,2006
Page 2 of 2
CITY OF AUBURN PUBLIC WAY AGREEMENT WITH ABOVENET
COMMUNICATIONS INC.
This Public Way Agreement is entered into by and between the City of
Auburn, Washington, a municipal corporation ("City") and Abovenet
Communications, Inc. a Delaware corporation ("Grantee").
WHEREAS, Grantee has applied to the City for a non-exclusive Public
Way Agreement for the right of entry, use, and occupation of certain public
right(s)-of-way within the City of Auburn, expressly to install, construct, erect,
operate, maintain, repair, relocate and remove its facilities in, on, upon, along
and/or across those right(s)-of-way; and
WHEREAS, the City has reviewed the Grantee's application and
determined that the location of Grantee's facilities within the requested right(s)-
of-way is in the best interest of the City and the citizens of Auburn,
NOW, THEREFORE, in consideration of the mutual benefits and
conditions set forth below, the parties hereto agree as follows:
Section 1. Notice
A. Written 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 party.
City:
Right-of-Way Manager
City of Auburn
25 West Main Street
Auburn, W A 98001-4998
Telephone: (253) 931-3010; Fax: (253) 931-3048
with a copy to:
City Clerk
City of Auburn
25 West Main Street
Auburn, WA 98001-4998
Grantee:
Dan Walla
Abovenet Communications
7905 South 196th Street, Kent, W A 98032
Telephone: (206) 988-8660; Fax: (206) 988-8669
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PUBLIC WAY AGREEMENT
Page 1
B. Any changes to the above-stated Grantee information shall be sent
to the City's Right-of-Way Manager, with copies to the City Clerk, referencing the
title of this agreement.
C. The above-stated Grantee voice and fax telephone numbers shall
be staffed at least during normal business hours of 8 AM to 5 PM Pacific
Standard time.
Section 2. Grant of Right to Use Public Way
A. Subject to the terms and conditions stated herein, the City grants to
the Grantee general permission to enter, use, and occupy the right(s)-of-way
specified in Exhibit "A," attached hereto and incorporated by reference (the
"Public Way").
B. The Grantee is authorized to install, remove, construct, erect,
operate, maintain, relocate and repair the facilities specified in Exhibit "B,"
attached hereto and incorporated by reference, and all necessary appurtenances
thereto, ("Grantee Facilities") for provision of lawful communications, including,
without limitation, long distance voice and data communications and other lawful
communications as disclosed to the City from time to time ("Grantee Services")
in, along, under and across the Public Way, for the sole purpose of providing
commercial utility or telecommunications services to persons or areas outside
the City.
C. This Public Way Agreement does not authorize the use of the
Public Way for any facilities or services other than Grantee Facilities and
Grantee Services, and it extends no rights or privilege relative to any facilities or
services of any type, including Grantee Facilities and Grantee Services,
elsewhere within the City.
D. This Public Way Agreement is non-exclusive and does not prohibit
the City from entering into other agreements, including Public Way Agreements,
impacting the Public Way, unless the City determines that entering into such
agreements interferes with Grantee's right set forth herein.
E. Except as explicitly set forth herein, this Public Way Agreement
does not waive any rights that the City has or may hereafter acquire with respect
to the Public Way or any other City roads, rights-of-way, property, or any portions
thereof. This Public Way Agreement shall be subject to the power of eminent
domain, and in any proceeding under eminent domain, the Grantee
acknowledges its use of the Public Way shall have no value.
F. The City reserves the right to change, regrade, relocate, abandon,
or vacate the Public Way. If, at any time during the term of this Public Way
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PUBLIC WAY AGREEMENT
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Agreement, the City vacates any portion of the Public Way, the City shall reserve
an easement for public utilities within that vacated portion, pursuant to RCW
35.79.030, within which the Grantee may continue to operate the Grantee
Facilities under the terms of this Public Way Agreement for the remaining period
set forth under Section 3.
G. The Grantee agrees that its use of Public Way shall at all times be
subordinated to and subject to the City and the public's need for municipal
infrastructure, travel, and access to the Public Way, except as may be otherwise
required by law.
H. Should the Grantee seek to use the Public Way to provide
services, including Grantee Services, to City residents or businesses, the
Grantee shall apply for, obtain, and comply with the terms of a City franchise
agreement for such use.
Section 3. Term of Agreement
A. This Public Way Agreement shall run for a period of five (5) years,
from the date of execution specified in Section 5.
B. Renewal Option of Term: The Grantee may renew this Public Way
Agreement for up to four (4) 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. Definitions
For the purpose of this agreement:
"ACC" means the Auburn City Code.
"Emergency" means a condition of imminent danger to the health, safety and
welfare of Persons or property located within the City including, without limitation,
damage to Persons or property from natural consequences, such as storms,
earthquakes, riots, acts of terrorism or wars.
"Maintenance or Maintain" shall mean examining, testing, inspecting, repairing,
maintaining and replacing the existing Grantee Facilities or any part thereof as
required and necessary for safe operation.
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PUBLIC WAY AGREEMENT
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"Relocation" means permanent movement of Grantee facilities required by the
City, and not temporary or incidental movement of such facilities, or other
revisions Grantee would accomplish and charge to third parties without regard to
municipal request.
"Rights-of-Way" means the surface and the space above and below streets,
roadways, highways, avenues, courts, lanes, alleys, sidewalks, easements,
rights-of-ways and similar public properties and areas.
Section 5. Acceptance of Public Way Agreement
A. This Public Way Agreement, and any rights granted hereunder,
shall not become effective for any purpose unless and until Grantee files with the
City Clerk (1) the Statement of Acceptance, attached hereto as Exhibit "C," and
incorporated by reference, (2) all verifications of insurance coverage specified
under Section 15, and (3) the financial guarantees specified in Section 16
(collectively, "Public Way Acceptance"). The date that such Public Way
Acceptance is filed with the City Clerk shall be the effective date of this Public
Way Agreement.
B. Should the Grantee fail to file the Public Way Acceptance with the
City Clerk within 30 days after the effective date of the resolution approving the
Public Way Agreement, said agreement will automatically terminate and shall be
null and void.
Section 6. Construction and Maintenance
A. The Grantee shall apply for, obtain, and comply with the terms of all
permits required under ACe Chapter 12.24 for any work done upon Grantee
Facilities. Grantee shall comply with all applicable City, State, and Federal codes,
rules, regulations, and orders in undertaking such work, which shall be done in a
thorough and proficient manner.
B. Grantee agrees to coordinate its activities with the City and all other
utilities located within the Public Way.
C. The City expressly reserves the right to prescribe how and where
Grantee Facilities shall be installed within the Public Way and may from time to
time, pursuant to the applicable sections of this Public Way Agreement, require
the removal, relocation and/or replacement thereof in the public interest and
safety at the expense of the Grantee.
D. Before commencing any work within the Public Way, the Grantee
shall comply with the One Number Locator provisions of RCW Chapter 19.122 to
identify existing utility infrastructure.
-.. --- -- --........ --.. -- --...
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PUBLIC WAY AGREEMENT
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Section 7. Repair and Emergency Work
In the event of an emergency, the Grantee may commence such repair
and emergency response work as required under the circumstances, provided
that the Grantee shall notify the City Right-of-Way Manager in writing as
promptly as possible, before such repair or emergency work commences, or as
soon thereafter as possible, if advance notice is not practicable. The City may
act, at any time, without prior written notice in the case of emergency, but shall
notify the Grantee in writing as promptly as possible under the circumstances.
Section 8. Damages to City and Third-Party Property
Grantee agrees that should any of its actions under this Public Way
Agreement impairs or damages any City property, survey monument, or property
owned by a third-party, Grantee will restore, at its own cost and expense, said
property to a safe condition. Such repair work shall be performed and completed
to the satisfaction of the City Engineer.
Section 9. Location Preference
A. Any structure, equipment, appurtenance or tangible property of a
private utility, other than the Grantee's, which was installed, constructed,
completed or in place prior in time to Grantee's application for a permit to construct
or repair Grantee Facilities under this Public Way Agreement shall have
preference as to positioning and location with respect to the Grantee Facilities.
However, to the extent that the Grantee Facilities are completed and installed prior
to new or additional structures, equipment, appurtenances or tangible property of
an earlier 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 City road or right-of-
way. A relocating utility shall not necessitate the relocation of another utility that
otherwise would not require relocation. This Section shall not apply to any City
facilities or utilities that may in the future require the relocation of Grantee
Facilities. Such relocations shall be governed by Section 11.
B. Grantee shall maintain a minimum underground horizontal
separation of five (5) feet from City water facilities and ten (10) feet from above-
ground City water facilities; provided, that for development of new areas, the
City, together with Grantee and other utility purveyors or authorized users of the
Pubic Way, will develop and follow the Public Works Director's determination of
a consensus for guidelines and procedures for determining specific utility
locations, subject additionally to this agreement and to a Franchise agreement,
should one become necessary.
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PUBLIC WAY AGREEMENT
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Section 10. Grantee Information
A. Grantee agrees to supply, at no cost to the City, such information as
the Director of Public Works, or Right-of-Way Manager, find necessary to
coordinate municipal functions with Grantee's activities and to fulfill any municipal
obligations under state law. Said information shall include, at a minimum; quarterly
statements due on the first day of January, April, July, and October of each year
detailing any changes in the information submitted as part of Grantee's Public Way
Agreement application as set forth in Exhibit "D," attached hereto and incorporated
by reference; as-built drawings of Grantee Facilities; installation inventory; and
maps and plans showing the location of existing or planned facilities within the
City. Said information may be requested either in hard copy and/or electronic
format, compatible with the City's data base system, as now or hereinafter existing,
including the City's geographic information Service (GIS) data base. Grantee shall
keep the Right-of-Way Manager informed of its long-range plans for coordination
with the City's long-range plans.
B. The parties understand that Washington law limits the ability of the
City to shield from public disclosure any information given to the City. 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 City Hearing Examiner, subject to the record before the
Hearings Examiner. Notwithstanding this option, Grantee shall indemnify and hold
harmless the City for any loss or liability for costs for attorneys fees because of
non-disclosures requested by Grantee under Washington's open public records
law, provided reasonable notice and opportunity to defend was given to Grantee or
Grantee is made aware of the pending of a request or claim.
Section 11. Relocation, of Grantee Facilities
A. Except as otherwise so required by law, Grantee agrees to
relocate, remove, or reroute its facilities at its sole expense and liability and at no
expense or liability to the City, except as may be required by RCW Chapter
35.99, or as further provided by Title 20 ACC, as ordered by the City Engineer,
and upon sixty (60) days written notice from the City. Pursuant to the provisions
of Section 14, Grantee agrees to protect and save harmless the City from any
customer or third-party claims for service interruption or other losses in
connection with any such change, relocation, abandonment, or vacation of the
Pubic Way.
B. In the event that the Public Way shall become a Primary State
Highway as provided by law, the State Department of Transportation may order
the Grantee to perform or undertake, at its sole expense, changes to the location
of Grantee Facilities so that the same shall not interfere with such state highway
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PUBLIC WAY AGREEMENT
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and so that such facilities shall conform to such new grades or routes as may be
established.
C. If a readjustment or relocation of the Grantee Facilities is
necessitated by a request from a party other than the City, that party shall pay
the Grantee the actual costs thereof.
Section 12. Abandonment and or Removal of Grantee Facilities
A. Within one hundred and eighty (180) days of Grantee's permanent
cessation of use of the Grantee Facilities, or any portion thereof, the Grantee shall,
at the City's discretion, either abandon in place or remove the affected facilities.
B. The parties expressly agree that this Section shall survive the
expiration, revocation or termination of this Public Way Agreement.
Section 13. Undergrounding
A. The parties agree that this Public Way Agreement does not limit the
City's authority under federal law, state law, or the ACC, to require the
undergrounding of utilities.
B. Whenever the City requires the undergrounding of aerial utilities in
the Public Way, the Grantee shall underground the Grantee Facilities in the
manner specified by the City Engineer, and where other utilities are present and
involved in the undergrounding project, Grantee shall only be required to pay its
fair share of common costs borne by all utilities, in addition to the costs
specifically attributable to the undergrounding of Grantee Facilities. Common
costs shall include necessary costs for common trenching and utility vaults. Fair
share shall be determined in comparison to the total number and size of all other
utility facilities being undergrounded.
Section 14. Indemnification and Hold Harmless
A. The Grantee shall defend, indemnify, and hold the City and its
officers, officials, agents, employees, and volunteers harmless from any and all
costs, claims, injuries, damages, losses, suits, or liabilities of any nature
including attorneys' fees arising out of or in connection with the Grantee's
performance under this Public Way Agreement, except to the extent such costs,
claims, injuries, damages, losses, suits, or liabilities are caused by the
negligence of the City.
B. The Grantee shall hold the City harmless from any liability arising out
of or in connection with any damage or loss to the Grantee Facilities caused by
maintenance and/or construction work performed by, or on behalf of, the City
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PUBLIC WAY AGREEMENT
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within the Public Way or any other City road, right-of-way, or other property, except
to the extent any such damage or loss is directly caused by the negligence of the
City, or its agent performing such work.
C. 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 City has the capability to provide trench, close trench
or confined space rescue. The Grantee, and its agents, assigns, successors, or
contractors, shall make such arrangements as Grantee deems fit for the
provision of such services. The Grantee shall hold the City harmless from any
liability arising out of or in connection with any damage or loss to the Grantee for
the City's failure or inability to provide such services, and, pursuant to the terms
of Section 14(A), the Grantee shall indemnify the City against any and all third-
party costs, claims, injuries, damages, losses, suits, or liabilities based on the
City's failure or inability to provide such services.
D. Should a court of competent jurisdiction determine that this
Agreement is subject to RCW 4.24.115, then, in the event of liability for damages
arising out of bodily injury to persons or damages to property caused by or
resulting from the concurrent negligence of the Grantee and the City, its officers,
officials, employees, and volunteers, the Grantee's liability hereunder shall be
only to the extent of the Grantee's negligence. It is further specifically and
expressly understood that the indemnification provided herein constitutes the
City's and Grantee's waivers of immunity under Industrial Insurance, Title 51
RCW, solely for the purposes of the indemnifications set forth in this Section 14.
This waiver has been mutually negotiated by the parties. The provisions of this
section shall survive the expiration or termination of this Agreement.
E. Acceptance by the City of any work performed by the Grantee shall
not be grounds for avoidance of this section.
Section 15. Insurance
A. The Grantee shall procure and maintain for the duration of the
Agreement, insurance against claims for injuries to persons or damage to
property which may arise from or in connection with the performance of the work
hereunder by the Consultant, its agents, representatives, or employees in the
amounts and types set forth below:
1. Automobile Liability insurance covering all owned, non-
owned, hired, and leased vehicles with a minimum combined single limit for
bodily injury and property damage of $1,000,000 per accident. Coverage shall
be written on Insurance Services Office (ISO) form CA 00 01 or a substitute form
providing equivalent liability coverage. If necessary, the policy shall be endorsed
to provide contractual liability coverage.
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2. Commercial General Liability insurance with limits no less
than $1,000,000 each occurrence, $2,000,000 general aggregate and a
$2,000,000 products-completed operations aggregate limit. Coverage shall be
written on ISO occurrence form CG 00 01 and shall cover liability arising from
premises, operations, independent contractors, products-completed operations,
and personal injury and advertising injury and liability assumed under an insured
contract. Aggregate limit of $2 Million can be satisfied by Excess Liability at $1
Million. There shall be no endorsement or modification of the Commercial
General Liability insurance for liability arising from explosion, collapse, or
underground property damage. The City shall be named as an additional
insured under the Grantee's Commercial General Liability insurance policy with
respect to the work performed under this Public Way Agreement using ISO
Additional Insured Endorsement CG 20 10 10 01 and Additional Insured-
Completed Operations endorsement CG 20 37 10 01 or substitute endorsements
providing equivalent coverage.
3. Professional Liability insurance with limits no less than
$1,000,000 per claim for all professionals employed or retained by the Grantee
to perform services under this Public Way Agreement.
4. Workers' Compensation coverage as required by the
Industrial Insurance laws of the State of Washington. Employer's Liability $1
Million per occurrence (Stop Gap Liability included in Employer's Liability.)
B. The insurance policies are to contain, or be endorsed to contain,
the following provisions for Automobile Liability, Professional Liability, and
Commercial General Liability insurance:
1. The Grantee's insurance coverage shall be primary
insurance as respects the City. Any insurance, self-insurance, or insurance pool
coverage maintained by the City shall be in excess of the Grantee's insurance
and shall not contribute with it.
2. The Grantee's insurance shall be endorsed to state that
coverage shall not be cancelled by either party except after thirty (30) days' prior
written notice by certified mail, return receipt requested, has been given to the City.
C. Acceptability of Insurers. Insurance is to be placed with insurers
with a current A.M. Best rating of not less than A:VII.
D. Verification of Coverage. Grantee shall furnish the City with
documentation of insurer's A.M. Best rating and with original certificates and a
copy of amendatory endorsements, including but not necessarily limited to the
additional insured endorsement, evidencing the insurance requirements of the
Consultant before commencement of the work.
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E. Grantee shall have the right to self-insure any or all of the above-
required insurance. Any such self insurance is subject to approval by the City.
F. Grantee's maintenance of insurance as required by this Agreement
shall not be construed to limit the liability of Grantee to the coverage provided by
such insurance, or otherwise limit the City's recourse to any remedy to which the
City is otherwise entitled at law or in equity.
Section 16. Performance Security
Pursuant to ACC Chapter 20.10, the Grantee shall provide the City with
an irrevocable, unconditional letter of credit from a Washington State bank as
specified in ACC Section 20.10.250, in a form and substance acceptable to the
City, securing the Grantee's faithful compliance with the terms of this Public Way
Agreement. Such guarantees shall be in the amount of ten thousand dollars
($10,000.00).
Section 17. Successors and Assignees
A. All the provisions, conditions, regulations and requirements herein
contained shall be binding upon the successors, assigns of, and independent
contractors of the Grantee, and all rights and privileges, as well as all obligations
and liabilities of the Grantee shall inure to its successors, assignees and
contractors equally as if they were specifically mentioned herein wherever the
Grantee is mentioned.
B. This public way agreement shall not be leased, assigned or
otherwise alienated without the express consent of the City by resolution, which
approval shall not be unreasonably withheld.
C. Grantee and any proposed assignee or transferee shall provide
and certify the following to the City not less than 120 days prior to the proposed
date of transfer: (a) Complete information setting forth the nature, term and
conditions of the proposed assignment or transfer; (b) All information required by
the City of an applicant for a Public Way Agreement with respect to the proposed
assignee or transferee; and, (c) An application fee which shall be set by the City,
plus any other costs actually and reasonably incurred by the City in processing,
and investigating the proposed assignment or transfer.
Section 18. Dispute Resolution
A. In the event of a dispute between the City and the Grantee arising
by reason of this Agreement, the dispute shall first be referred to the operational
officers or representatives designated by Grantor and Grantee to have oversight
over the administration of this Agreement. The officers or representatives shall
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meet within fifteen (15) calendar days of either party's request for a meeting,
whichever request is first, and the parties shall make a good faith effort to
achieve a resolution of the dispute.
B. If the parties fail to achieve a resolution of the dispute in this
manner, either party may then pursue any available judicial remedies. This
Public Way Agreement shall be governed by and construed in accordance with
the laws of the State of Washington. In the event any suit, arbitration, or other
proceeding is instituted to enforce any term of this Agreement, the parties
specifically understand and agree that venue shall be exclusively in King County,
Washington. The prevailing party in any such action shall be entitled to its
attorneys' fees and costs of suit, which shall be fixed by the judge hearing the
case, and such fees shall be included in the judgment.
Section 19. Enforcement and Remedies
A. If the Grantee shall willfully violate, or fail to comply with any of
the provisions of this Public Way Agreement through willful intent or gross
negligence, or should it fail to heed or comply with any notice given to Grantee
under the provisions of this agreement, the City may, at its discretion, provide
Grantee with written notice to cure the breach within thirty (30) days of
notification. If the City determines the breach cannot be cured within thirty
days, the City may specify a longer cure period, and condition the extension of
time on Grantee's submittal of a plan to cure the breach within the specified
period, commencement of work within the original thirty day cure period, and
diligent prosecution of the work to completion. If the breach is not cured within
the specified time, or the Grantee does not comply with the specified
conditions, the Grantee, and its successors or assignees, shall forfeit all rights
conferred hereunder, and the Public Way Agreement may be revoked or
annulled by the City with no further notification.
B. Should the City determine that Grantee is acting beyond the scope
of permission granted herein for Grantee Facilities and Grantee Services, the
City reserves the right to cancel this Public Way Agreement upon thirty days (30)
written notice to Grantee and require the Grantee to apply for, obtain, and
comply with all applicable City permits, franchises, or other City permissions for
such actions, and if the Grantee's actions are not allowed under the Auburn City
Code, to compel Grantee to cease such actions.
Section 20. Compliance with Laws and Regulations
A. This Public Way Agreement is subject to, and the Grantee shall
comply with all applicable federal and state or City laws, regulations and policies
(including all applicable elements of the City's comprehensive plan), in
conformance with federal laws and regulations, affecting performance under this
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Public Way Agreement. Furthermore, notwithstanding any other terms of this
agreement appearing to the contrary, the Grantee shall be subject to the police
power of the City to adopt and enforce general ordinances necessary to protect
the safety and welfare of the general public in relation to the rights granted in the
Public Way.
B. The City reserves the right at any time to amend this Public Way
Agreement to conform to any hereafter enacted, amended, or adopted federal
or state statute or regulation relating to the public health, safety, and welfare,
or relating to roadway regulation, or a City Ordinance enacted pursuant to such
federal or state statute or regulation upon providing Grantee with thirty (30)
days written notice of its action setting forth the full text of the amendment and
identifying the statute, regulation, or ordinance requiring the amendment. Said
amendment shall become automatically effective upon expiration of the notice
period unless, before expiration of that period, the Grantee makes a written call
for negotiations over the terms of the amendment. If the parties do not reach
agreement as to the terms of the amendment within thirty (30) days of the
initial notice, the City may enact the proposed amendment, by incorporating the
Grantee's concerns to the maximum extent the City deems possible.
C. The City may terminate this Public Way Agreement upon thirty (30)
days written notice to the Grantee, if the Grantee fails to comply with such
amendment or modification.
Section 21. License, Tax and Other Charges
This Public Way Agreement shall not exempt the Grantee from any future
license, tax, or charge which the City may hereinafter adopt pursuant to authority
granted to it under state or federal law for revenue or as reimbursement for use
and occupancy of public ways.
Section 22. Consequential Damages Limitation
Notwithstanding any other provision of this Agreement, in no event shall
either party be liable for any special, incidental, indirect, punitive, reliance,
consequential or similar damages.
Section 23. Severability
If any portion of this Public Way Agreement is deemed invalid, the
remainder portions shall remain in effect.
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Section 24. Titles
The section titles used herein are for reference only and should not be
used for the purpose of interpreting this Public Way Agreement.
DATED and SIGNED this _ day of
,2006.
CITY OF AUBURN
PETER B. LEWIS
MAYOR
ATTEST:
Danielle E. Daskam,
City Clerk
Version Date: 8/07/2006
PUBLIC WAY AGREEMENT
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EXHIBIT "C"
STATEMENT OF ACCEPTANCE
Abovenet Communications, Inc., for itself, its successors and assigns, hereby
accepts and agrees to be bound by all lawful terms, conditions and provisions of
the Public Way Agreement attached hereto and incorporated herein by this
reference.
Abovenet Communications, Inc.
By: ~ Q~j-:)
Name: ~G...~.\... ~ ~o~
Title: ~..;? <r c-P'o
Date: ~ \ \?\v~
STATE OF 1/ buJ jOfl.-K- )
, J. )ss
COUNTY OF IdIAW1tlfA.../) .
On this la- day of Altf US I , 2006, before me the undersigned, a
Notary Public in and for the State of /Vetl VfurJL duly commissioned and
sworn, personally appeared, (flit'me _ n. flIs.. of Abovenet
Communications, Inc., 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.
t~/'L~/
Signat~re N0t8ry~~~;>:'~~~yoric
No. 31-6008842
Quaniioo in New York County A
Commission Expires Mar. 1, dO~
NOTARY PUBLIC in and for the State of e~o or;::"'"
~ , residing at 301 E. & IP):t ;vyc IOtJ2j
MY COMMISSION EXPIRES: c8J h. 007
Version Date: 8/07/2006
PUBLIC WAY AGREEMENT
Page 14
Exhibit D
Quarterly Reporting Requirements
Applicant Information
Identity of Applicant (including all affiliates): AboveNet Communications, Inc.
Primary contact
Name: Dan Walla
address: 7905 So. 196th St. , Kent, WA 98032
phone number: 206-988-8660
fax number: 206-988-8669
email address:vpeterson@above.net
Marketing contact
Name: Jon Jones
address: 150 S. 1st St., San Jose, CA
phone number: 408-350-6449
fax number
email address:jjones@above.net
Customers using the Applicant's Facility: No customers within city of Auburn
Primary contact
Name
address
phone number
fax number
email address
Other parties owning lines within the facility: 360 Networks is owner of entire trench line
Primary contact
Name
address
phone number
fax number
email address
Exhibit D
Quarterly Reporting Requirements
Marketing contact
Name
address
phone number
fax number
email address
System Information
Location and route of the facility: West Valley Highway, from North City Limit to South City Limit
Location of interconnection with other telecommunication providers - Not Applicable
Location of hand holds, manholes, and other potential access points for local customers within 5 miles of
city limits: On average, every 750-ft along network
Description of the type of line used to provide the service (Fiber, Cable etc.): Fiber
Description of the facility (conduits, ducts, size, configuration): 2 x 1.25" conduits.
Number of lines in the facility; AboveNet only owns 2. 360 Networks is responsible for trench and
other conduits.
Capacity of the lines: In general, each of our conduits will only accept one fiber optic cable with
multiple fiber strands.
Excess capacity - number of unused conduits and unused "dark" fiber; We have one "spare" conduit.
The majority of our 432-strand fiber is 'dark".
For existing facilities: excess capacity after installation of applicant's facilities: Not Applicable
Information about the Service
Description of the type of telecommunications services that are or will
be provided (voice, video, data etc.): Primarily dark and lit fiber services.
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