HomeMy WebLinkAbout5152 ] ORDINANCE NO. 5 i 5 2
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF AUBURN,
3 WASHINGTON, AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE A
PUBLIC WAY AGREEMENT BETWEEN THE CITY AND PACIFIC FIBER LINK,
4 L.L.C.
5
WHEREAS, PACIFIC FIBER LINK, L.L.C. has made application
for a non-exclusive Public Way Agreement and the CITY has
7
determined that the application is complete; and
8
WHEREAS, a public hearing was conducted September 8, 1998
9
regarding the CITY entering into a Public Way Agreement with
10
PACIFIC FIBER LINK, L.L.C.; and
]1
WHEREAS, it has been determined that PACIFIC FIBER LINK,
L.L.C., has the financial, technical and legal ability to
]3
provide the services proposed in its application; and
14
WHEREAS, there is capacity in the City's Public Ways, as
15
defined in the Public Way Agreement, to accommodate PACIFIC
18
FIBER LINK'S proposed facilities; and
17
WHEREAS, the damage or disruption, if any, of public or
18
private facilities, improvements, service, travel or
19
landscaping, including remedies, are addressed in the Public
20
Way Agreement to the satisfaction of the CITY; and
WHEREAS, the cost and disruption of construction within
22
the Public Ways, as defined in the Public Way Agreement, will
be minimized; and
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25
28
Ordinance No. 5152
September 14, 1998
Page 1
] W~EREAS, permission to use the Public Ways, as provided
2 in the Public Way Agreement, is in the public interest and the
3 effect, if any, on the public health, safety and welfare is
4 minimized and addressed in the Public Way Agreement; and
5 WHEREAS, the service PACIFIC FIBER LINK, L.L.C., will
6 provide to the region is in the public interest; and
7 WHEREAS, the Public Way Agreement requires that
8 applicable federal, state, and City of Auburn
9 telecommunication laws, ordinances, regulations and policies
]0 will be followed during the term of the Public Way Agreement;
]] and
12 WHEREAS, Pacific Fiber Link warrants that there are no
13 plans or intentions to utilize the proposed Telecommunication
]4 System to provide Local Service, and recognizes the necessity
15 to obtain a Franchise from the City prior to any offering of
16 Local Service;
]7 NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF AUBURN,
18 WASHINGTON, DO ORDAIN AS FOLLOWS:
19 Section 1. The Mayor and City Clerk of the City of
20
Auburn are hereby authorized to execute a Public Way Agreement
between the City and PACIFIC FIBER LINK, L.L.C. A copy of
said Agreement is attached hereto, designated as Exhibit "A"
and incorporated by reference in this Ordinance.
24
25
Ordinance No. 5152
Septe~er 14, 1998
Page 2
Section 2. The Mayor is hereby authorized to implement
1
such administrative procedures as may be necessary to carry
2
out the directives of this legislation.
3
Section 3. This Ordinance shall take effect and be in
4
5 force five days from and after its passage, approval and
8 publication as provided by law.
7
8 INTRODUCED: September 21, 1998
9 PASSED: September 21, 1998
]0 APPROVED: September 21, 1998
]l
13 CHARLES A. BOOTH
MAYOR
14
ATTEST:
17 Danielle E. Daskam,
City Clerk
18
19
APPROVED AS TO FORM:
20 M' ~chael~s
22 ,
city Attorney
23
24 PUBLISHED:
25
26
Ordinance No. 5152
Septe~er 14, 1998
Page 3
EXHIBIT "A"
CITY OF AUBURN, WASHINGTON
PUBLIC WAY AGREEMENT WITH PACIFIC FIBER LINK, L.L.C.
WHEREAS, PACIFIC FIBER LINK, L.L.C. has applied to the CITY OF AUBURN for a
non-exclusive Public Way Agreement for the installation, operation and maintenance of a Fiber-
Optics Telecommunications trunk through System in, on, upon, along and/or across certain Public
Ways within the CITY OF AUBURN, and
WHEREAS, PACIFIC FIBER LINK, L.L.C. warrants by acceptance of this Public Ways
Agreement that Local Service to the Auburn area, requiring a Franchise Agreement, is not
contemplated at this time.
NOW, THEREFORE, the CITY OF AUBURN, hereinafter referred to as "CITY" and
PACIFIC FIBER LINK, L.L.C. hereinafter referred to as "PACIFIC FIBER LINK" agree as follows:
PUBLIC WAYS AGREEMENT WITH PACIFIC FIBER LINK
TABLE OF CONTENTS
PAGE NO.
Public Ways AVreement. 1 - 13
Attachment 1, Location and Identification of Rights Granted 14
Attachment 2, Terms and Conditions 15-17
Attachment 3, Title 20 Auburn City Code 18-74
Ordinance No. 5152
Exhibit A
September 17, 1998
Page 1
PUBLIC WAYS AGREEMENT
SECTION 1. The CITY of Auburn (hereinafter called the "CITY") hereby grants to PACIFIC
FIBER LINK, L.L.C. (hereinafter called "GRANTEE"), the right to use that CITY right-of-way
hereinafter described in Attachment 1, which is by this reference incorporated herein, to construct,
replace, maintain and use equipment and Facilities for an underground fiber optic cable system under
the specific terms and conditions contained herein for an initial term of five (5) years, and as
provided in Attachment 2 entitled "Terms and Conditions", which is by this reference incorporated
herein, and all applicable federal, state and local laws, including but not limited to, Chapter 5.84
ACC, entitled "Registration of Telecommunications Carriers, Operators, Providers, and Other
Commercial Utilities", Title 12 ACC, entitled "Streets, Sidewalks, and Public Works", Chapter
13.32 ACC, entitled "Underground Wiring Regulations", Title 18 ACC, entitled "Zoning", Title 20
ACC entitled "Telecommunications and Other Commercial Utilities", and any other ordinances,
codes, rules, regulations and orders as they apply. PACIFIC FIBER LINK shall at all times be
subject to the exercise of the CITY' S police powers. Title 20 ACC entitled "Telecommunications
and Other Commercial Utilities" and any future amendments is incorporated herein by this reference.
Attached hereto as Attachment 3 is a courtesy copy of Title 20.
SECTION 2. DEFINITIONS.
"Affiliate" means a person that (directly or indirectly) owns or controls, is owned or
controlled by, or is under common ownership or control with another person.
"Conduit" means the duct or protective enclosure of the fiber optic cable system.
"Conflict" means a future planned CITY street or utility capital improvement requiring the
CITY' s use of the same physical space occupied by GRANTEE'S Conduit, and relocation of said
Conduit is a pre-requisite to construction of the CITY' s planned improvement.
"Emergency" means a condition of imminent danger to the health, safety and welfare of
Persons or property located within the CITY including, without limitation, damage to Persons or
property from natural consequences, such as storms, earthquakes, riots or wars.
"Excess Capacity" means the volume or capacity in any existing or future duct, Conduit,
manhole, hand-hole, or other utility Facility within the public way that is or will be available for use
for additional telecommunications facilities.
"Facility" means the plant, equipment, and property, including but not limited to, cables,
wires, Conduits, ducts, pedestals, hubs, antennae, electronics, and other appurtenances used or to be
used for the purpose of offering telecommunications services.
"Local Service" means that local exchange service would be provided to customers (business
and/or residential) within the corporate CITY limits of Auburn.
Ordinance No. 5152
Exhibit A
September 17, 1998
Page 2
SECTION 3. INSTALLATION OF EQUIPMENT. All Facilities shall be installed and maintained
at such places and locations as shall least interfere with existing utilities and franchise rights, and
with the flee passage of traffic and in accordance with federal law and the laws of the State of
Washington and Ordinances and Standards of the CITY regulating such construction. This includes
the terms and conditions of any permit required and issued for construction of such Facilities.
GRANTEE warrants as a condition of this Agreement that any equipment, Facilities and system
installed constitutes a trunk-through system only which will not directly and separately service
local businesses or residents in the CITY.
Prior to selling, leasing, or otherwise transferring any Excess Capacity to any other person
who intends to offer Local Service, GRANTEE shall provide written notice to the CITY, at least 30
days prior to such transfer, of its intent to make such a transfer. In addition, GRANTEE shall not
complete such lease, sale or transfer of Excess Capacity, until the transferee has obtained a Franchise
from the CITY.
SECTION 4. RELOCATION OF EQUIPMENT.
Emergencies: Whenever the CITY determines it is necessary that any Facilities of GRANTEE be
removed or relocated to repair an adjacent CITY utility or to protect and assure the public safety
during an Emergency event, GRANTEE shall, within 24 hours of written notice from the CITY,
remove or relocate such Facilities as directed to an area within the CITY public way mutually agreed
upon, at no cost to the CITY.
Routine: Whenever the CITY determines it necessary that any Facilities of GRANTEE be
moved or relocated to accommodate the improvement by or on behalf of the CITY of any areas,
including, but not limited to, the grading or widening of any street within the public right-of-way
defined herein, GRANTEE shall, within 30 days of written notice from the CITY, move or relocate
such Facilities as directed, to an area within CITY right-of-way mutually agreed upon, at no cost to
the CITY. GRANTEE shall within the first 14 days after receipt of notice, communicate to the
CITY its intention, plan and schedule for said or removals. If GRANTEE fails to comply with the
requirements of the initial 14-day period, the CITY has the unilateral right to proceed with the
necessary relocation and removal using its own employees or contractor, and GRANTEE agrees to
reimburse the CITY all reasonable, documented costs for any relocation, removal or delay costs
incurred by the CITY and/or its contractors. GRANTEE will design and install its system in such
manner that future relocations required by the CITY may be accomplished with least interruption
of services. In the event GRANTEE fails to complete full performance within the thirty (30) day
period, GRANTEE agrees to reimburse the CITY for all damages incurred by the CITY or its
contractors for delays of future CITY work in the Public Way related to equipment, Conduit and
cable routing conflicts related to GRANTEE's failure to comply with the requirements of this
subsection.
SECTION 5. RECORD OF INSTALLATION. GRANTEE shall provide to the CITY, upon the
Ordinance No. 5152
Exhibit A
September 17, 1998
Page 3
CITY'S request, copies of available current drawings in use by GRANTEE showing the location of
GRANTEE'S Facilities within public fight-of-way. With respect to excavations within any area, the
CITY and GRANTEE shall comply with the provisions of Chapter 19.122 RCW and any other
applicable State law or CITY Ordinance. Before issuance of the excavation permit, GRANTEE shall
post a performance bond from a Washington State based surety company in the amount of 125% of
the cost of construction within the CITY ($655,237.00). Once the installation and all related site
restoration work has been completed to the CITY'S satisfaction and GRANTEE has submitted
record plans as required by the CITY for the completed project, the CITY will release the bond.
SECTION 6. FEES. As reimbursement for administration expenses, GRANTEE shall pay an initial
fee to the CITY of $3.996.00 based upon the CITY'S estimate of costs to inspect and map the work
described in Attachment 1, and includes the initial five year excavation permit fee. Public Way
Agreement renewals at 5-year intervals will require the fee applicable at that time. Fees are due and
payable at time of permit issuance and renewal in accordance with Chapter 20.04 of the CITY Code.
SECTION 7. INDEMNITY.
The GRANTEE hereby releases, covenants not to bring suit and agrees to indemnify, defend
and hold harmless the CITY, its elected and appointed officials, officers, employees, agents,
representatives, engineers, consultants, and volunteers from any and all claims, costs, judgments,
awards, or liability to any person, including claims by the GRANTEE's own employees to which the
GRANTEE might otherwise be immune under Title 51 RCW, arising from injury or death of any
person or damage to property of which the negligent acts or omissions of the GRANTEE, its agents,
servants, officers, or employees in performing under this Public Ways Agreement are the proximate
cause. The GRANTEE further releases, covenants not to bring suit and agrees to indemnify, defend
and hold harmless the CITY, its elected and appointed officials, officers, employees, agents,
representatives, engineers, consultants, and volunteers from any and all claims, costs, judgments,
awards, or liability to any person including claims by the GRANTEE's own employees, to which the
GRANTEE might otherwise have immunity under Title 51 RCW, arising against the CITY solely
by virtue of the CITY's ownership or control of the fights-of-way or other public properties, by
virtue of the GRANTEE's exercise of the fights granted herein, or by virtue of the CITY's permitting
the GRANTEE's use of the CITY's rights-of-way or other public property, based upon the CITY's
inspection or lack of inspection of work performed by the GRANTEE, its agents and servants,
officers or employees in connection with work authorized on the CITY's property or property over
which the CITY has control, pursuant to this Public Ways Agreement, or pursuant to any other
permit or approval issued in connection with this Public Ways Agreement. This covenant of
indemnification shall include, but not be limited by this reference, claims against the CITY arising
as a result of the negligent acts or omissions of the GRANTEE, its agents, servants, officers, or
employees in barricading, instituting trench safety systems or providing other adequate warnings of
any excavation, construction, or work in any public right- of- way or other public place in
performance of work or services permitted under this Public Ways Agreement.
Ordinance No. 5152
Exhibit A
September 17, 1998
Page 4
Inspection or acceptance by the CITY of any work performed by the GRANTEE at the time
of completion of construction shall not be grounds for avoidance of any of these covenants of
indemnification. Said indemnification obligations shall extend to claims which are not reduced to
a suit and any claims which may be cornpromised prior to the culmination of any litigation or the
institution of any litigation.
In the event that the GRANTEE refuses the tender of defense in any suit or any claim, said
tender having been made pursuant to the indemnification clauses contained herein, and said refusal
is subsequently detennined by a court having jurisdiction (or such other tribunal that the parties shall
agree to decide the matter), to have been a wrongful refusal on the part of the GRANTEE, then the
GRANTEE shall pay all of the CITY's costs for defense of the action, including all reasonable expert
witness fees and reasonable attomeys' fees and the reasonable costs of the CITY, including
reasonable attorneys' fees for recovering costs under this indemnification clause.
In the event of liability for damages arising out of bodily injury to persons or damages to
property caused by or resulting from the concurrent negligence of the GRANTEE, and the CITY,
its elected and appointed officials, officers, employees, agents, representatives, engineers,
consultants, and volunteers, the GRANTEE's liability hereunder shall be only to the extent of the
GRANTEE's negligence. It is further specifically and expressly understood that the indemnification
provided herein constitutes the GRANTEE's waiver of immunity under Title 5 1 RCW, solely for the
purposes of this indemnification. This waiver has been mutually negotiated by the parties.
The provisions of this Section shall survive the expiration or termination of this Public Ways
Agreement.
Notwithstanding any other provisions of this Section, the GRANTEE assumes the risk of
damage to its facilities located in the CITY's public ways, rights-of-way, easements, and property
from activities conducted by the CITY, its elected and appointed officials, officers, employees,
agents, representatives, engineers, consultants, and volunteers. The GRANTEE releases and waives
any and all claims against the CITY, its elected and appointed officials, officers, employees, agents,
representatives, engineers, consultants, and volunteers, for damage to or destruction of the
GRANTEE's facilities caused by or arising out of activities conducted by the CITY, its elected and
appointed officials, officers, employees, agents, representatives, engineers, consultants, and
volunteers, in the public ways, rights-of-way, easements, or property subject to this Public Ways
Agreement except to the extent any such damage or destruction is caused by or arises from the sole
negligence or any willful or malicious action on the part of the CITY, its elected and appointed
officials, officers, employees, agents, representatives, engineers, consultants, and volunteers. The
GRANTEE further agrees to indemnify, hold harmless and defend the CITY against any claims for
damages, including, but not limited to, business interruption damages and lost profits, brought by
Ordinance No, 5152
Exhibit A
September 17, lW8
Page 5
or under users of the GRANTEE's facilities as the result of any interruption of service due to damage
or destruction of the user's facilities caused by or arising out of activities conducted by the CITY,
its elected and appointed officials, officers, employees, agents, representatives, engineers,
consultants, and volunteers, except to the extent any such damage or destruction is caused by or
arises from the sole negligence or any willrid or malicious actions on the part of the CITY, its elected
and appointed officials, officers, employees, agents, representatives, engineers, consultants, and
voltmteers.
SECTION 8. INSURANCE. GRANTEE shall, as a condition of this Public Way Agreement,
secure and maintain the following liability insurance policies insuring both the GRANTEE and the
CITY, and its elected and appointed officers, officials, agents, employees, representatives, engineers,
consultants, and volunteers as additional insureds against claims for injuries to persons or damages
to property which may arise from or in connection with the exercise of the rights, privileges, and
authority granted to the GRANTEE:
A. Comprehensive general liability insurance, written on an occurrence basis,
with limits not less than:
(1) $5,000,000.00 for bodily injury or death to each person;
(2) $5,000,000.00 for property damage resulting from any one accident;
and
(3) $5,000,000.00 for all other types of liability.
B. Automobile liability for owned, non-owned and hired vehicles with a limit
of $3,000,000.00 for each person and $3,000,000.00 for each accident;
C. Worker's compensation within statutory limits and employer's liability
insurance with limits of not less than $1,000,000.00;
D. Comprehensive form premises-operations, explosions and collapse hazard,
underground hazard and products completed haT_m'd with limits of not less than $3,000,000.00;
E. The liability insurance policies required by this Section shall be maintained
by the GRANTEE throughout the term of this Public Ways Agreement and such other period of time
during which the GRANTEE is operating without a Public Ways Agreement hereunder, or is
engaged in the maintenance or removal of its telecommunications facilities. The GRANTEE shall
provide an insurance certificate, together with an endorsement naming the CITY, and its elected and
appointed officers, elected officials, agents, employees, representatives, engineers, consultants, and
Ordinance No. 5152
Exhibit A
September 17, 1998
Page 6
volunteers as additional insureds, to the CITY prior to the commencement of any work or installation
of any utility or telecommunications facilities pursuant to this Public Ways Agreement. Any
deductibles or self-insured retentions must be declared to and approved in writing by the CITY prior
to the Public Ways Agreement becoming effective. Payment of deductibles and self~insured
retentions shall be the sole responsibility of the GRANTEE. The insurance certificate required by
this Section shall contain a clause stating that coverage shall apply separately to each insured against
whom claim is made or suit is brought, except with respect to the limits of the insurer's liability. The
GRANTEE's insurance shall be primary insurance as respects the CITY, its officers, elected
officials, employees, representatives, engineers, agents, consultants, and volunteers. Any insurance
maintained by the CITY, its officers, elected officials, employees, representatives, engineers, agents,
consultants, and volunteers shall be in excess of the GRANTEE's insurance and shall not contribute
with it;
F. In addition to the coverage requirements set forth in this Section, each such
insurance policy shall contain the following endorsement:
"It is hereby understood and agreed that this policy may not be canceled nor the
intention not to renew be stated until 60 days after receipt by the CITY, by registered
mail, (remm receipt requested) of a written notice addressed to the City Clerk of such
intent to cancel or not to renew."
G. Within 30 days after receipt by the CITY of said notice, and in no event later
than 15 days prior to said cancellation or intent not to renew, the GRANTEE shall obtain and famish
to the CITY replacement insurance policies meeting the requirements of this Section. Any lapse in
the required insurance coverage shall be cause for termination of this Public Ways Agreement.
SECTION 9. NON-EXCLUSIVE. The rights and privileges herein granted shall not be deemed
exclusive and the right is hereby reserved to the CITY to grant to any other person, company,
corporation or association, or entity, including the CITY, the right to exercise the rights and
privileges herein granted.
Ordinance No, 5152
Exhibit A
September 17, 1998
Page 7
SECTION 10. POLICE POWERS. Nothing herein shall be deemed to affect the CITY'S ability to
exercise its police powers. Further, nothing shall be deemed to grant GRANTEE vested rights or
franchise rights.
SECTION 11. MODIFICATIONS OF TERMS AND CONDITIONS. The CITY and GRANTEE
hereby reserve the right to alter, amend or modify the terms and conditions of this Agreement upon
written agreement by both parties to such alteration, amendment or modification.
SECTION 12. RENEWAL OF AGREEMENT. This Agreement shall be automatically renewed
for additional five-year periods upon payment of the renewal fee, unless either the CITY or
GRANTEE provides written notice of its intent not to renew the Agreement 120 days prior to
January 1 st of said renewal year. In the event that GRANTEE shall decide to offer at any time
Local Service from its equipment, Facilities, or underground fiber optic cable system to business
and/or residential customers within Auburn's incorporated area, it shall apply for and obtain a
franchise agreement from the CITY prior to the offer of or delivery of such Local Services. In order
to assure adequate time to apply for and negotiate the terms of such a franchise, GRANTEE shall
provide written notice of its intent to offer Local Services and submit an application for franchise
120 days prior to the desired date of commencing Local Service. If a franchise is granted by the
CITY, this Agreement shall terminate and the use, operation, and maintenance of such equipment,
Facilities, and underground fiber optic cable system, and all related appurtenances, shall be subject
solely to the provisions of said franchise.
SECTION 13. TERMINATION. The CITY and GRANTEE recognize the paramount public
interest in the right-of-way subject to this Agreement. Shotrid the public interest, determined by the
CITY, require consideration of termination of this Agreement, such procedures as outlined in Title
20, Aubum CITY Code shall control termination.
SECTION 14. VALIDITY OF TERMS. If any terms, provisions, condition, or portion of this
Agreement shall be held to be invalid or unconstitutional for any reason, the CITY may, at its own
option, deem the entire Agreement to be affected and thereby nullified. However, in the event of
said determination of invalidity of any part of this Agreement, the CITY may elect to treat the
portion declared invalid as severable and enforce the remaining portions of this Agreement until such
time as a new Agreement is negotiated and approved by both parties. The CITY does not, by
executing this Agreement, waive any rights to later require a franchise agreement under CITY Code
in the event GRANTEE shall decide to offer point services from its equipment, Facilities, or
underground fiber optic cable system to CITY area businesses and/or residential customers.
Ordinance No. 5152
Exhibit A
September 17, 1998
Page 8
SECTION 15. NON-TRANSFERABLE. The fights granted by this Agreement inure to the benefit
of GRANTEE, and any parent, subsidiary, Affiliate, heir, successor, or assigns now or hereafter
existing. GRANTEE may assign its rights under this Agreement to a parent, subsidiary, Affiliate,
heir, or successor so long as (1) such parent, subsidiary, Affiliate or successor, assumes all
obligations of GRANTEE hereunder; (2) such parent, subsidiary, Affiliate, heir or successor is
bound to the same extent as GRANTEE hereunder; and (3) the CITY receives sufficient evidence
of such agreement and notice to confirm that the above conditions are satisfied. The rights shall not
be assignable to parties other than a parent, subsidiary, or Affiliate, or successor without the express,
written consent of the governing body of the CITY, which shall be determined by the CITY within
60 days. Any consent is to be evidenced by written agreement with the CITY that fully recites the
terms and conditions, if any, upon which consent is given.
SECTION 16. ENFORCEMENT. If the CITY seeks enforcement of any terms or conditions of
this Agreement in court, or if a lawsuit is instituted with respect to this Agreement, GRANTEE
agrees to pay the CITY'S reasonable attorney's fees and costs and other allied expenses incurred by
the CITY regarding said enforcement or lawsuit if the CITY is the substantially prevailing party.
SECTION 17. GRANTEE AVAILABILITY. GRANTEE shall be available to the CITY 24 hours
a day, 7 days a week, regarding problems or complaints related to GRANTEE's Telecommunication
System. The CITY may contact the network control center at (253) 709-6186 or (800) 315-8543,
a telephone number and pager number, respectively, at which a GRANTEE employee can be reached
twenty-four (24) hours a day, seven (7) days a week regarding such problems or complaints.
SECTION 18. EFFECTIVE DATE. This Agreement shall take effect and be in force upon
execution by the undersigned CITY official and the authorized authority of Pacific Fiber Link,
L.L.C.
SECTION 19. NOTICE. Unless otherwise expressly agreed between the parties, every notice or
response to be served upon the CITY or PACIFIC FIBER LINK shall be in writing, and shall be
deemed to have been duly given to the required party five (5) business days after having been posted
in a properly sealed and correctly addressed envelope by certified or registered mail, postage prepaid,
at a Post Office or branch thereof regularly maintained by the U.S. Postal Service.
Ordinance No, 5152
Exhibit A
September 17, lW8
Page 9
The notices or responses to the CITY shall be addressed as follows:
City Clerk
25 West Main Street
Auburn, WA 98001-4998
With a copy to:
City Attorney
CITY of Auburn
25 West Main Street
Auburn, WA 98001-4998
The notices or responses to PACIFIC FIBER LINK shall be addressed as follows:
Pacific Fiber Link, L.L.C.
ATTN: General Counsel
1333 W. 120th Ave., Ste. 216
Westminster, CO 80234
The CITY and PACIFIC FIBER LINK may designate such other address or addresses from time to
time by giving notice to the other.
PASSED BY THE CITY COUNCIL OF THE CITY OF AUBURN, WASHINGTON,
AT ITS REGULAR MEETING ON THE ]] ~ DAY OF, Ct ~', 1998.
CITY OF AUBURN:
Mayor, Charles A. Booth D
25 W. Main
Aubum WA 98001-4998
Ordinance No, 5152
Exhibit A
September 17, 1998
Page 10
Attest:
Danielle E. Daskam,
City Clerk
APPROVED AS TO FORM:
Michael J. Reynolds,
City Attomey
Acknowledged and Accepted by:
PACIFIC FIBER LINK, L.L.C.:
Manager of Operations
Prim Name and Title
James A. Cox
215 Marine Dr Ste C
Blaine,WA 98230 (360) 332-2215
Name, Address andPhone#
Ordinance No. 5152
Exhibit A
September 17, 1998
Page 11
STATE OF WASHINGTON )
COUNTY OF KING )ss.
)
On this ] day of ~q~,/,. 1998, before me, the undersigned, a Notary
Public in and for the State of ~ua$4o d~ , personally appeared"i}~.~i~ doing business as
'/[q[t.~.l~atea~41~--~ , who executed the within and
foregoing instrument, and acknowledged said instnunent to be the free and voluntary act and deed
of said corporation for the uses and purposes therein mentioned, and on oath stated that he is
authorized to execute said instrument on behalf of said corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the date
hereinabove set forth.
'~ ' NOTARY PUBLIC in and for the State of
· ~, ' Washington, residing in
MY COMMISSION expires:
Ordinance No. 5152
Exhibit A
September 17, 1998
Page 12
STATEMENT OF ACCEPTANCE
Pacific Fiber Link, L.L.C. itself, its successors and assigns,
hereby accepts and agrees to be bound by all terms, conditions and
provisions of the Public Ways Agreement granted pursuant to
Ordinance No. ~J_~/~, attached hereto and incorporated herein by
this reference.
By: J~"' ~ ~ Name: James A. Cox
Title: Manaqer of Operations
Da t e: / 0///~ ~
Attached hereto is a copy of the executed Ordinance approving
the execution of the Public Ways Agreement by the CITY and a
corporate resolution or corporate secretary certificate therefor
duly executed and approving this Statement of Acceptance, the
execution thereof and authorizing the officer executing this
Statement of Acceptance to do so.
Ordinance No. 5152
Exhibit A
September 17, 1998
Page 13
15. GRANTEE shall, within 60 days after completion of construction, provide to the CITY a
computer disc containing record drawings in AutoCAD drawing file format and a complete set of
plans, drawn to scale and certified to the CITY as accurately depicting the horizontal and vertical
location and configuration of all Facilities constructed pursuant to the agreement. The City Engineer
shall have the discretion to prescribe the format and/or media of said record drawings, consistent
with CITY codes and policies.
16. Contractors or agents of GRANTEE shall obtain any and all other necessary permits,
licenses, and approvals as required by law.
17. GRANTEE shall provide and maintain a means of locating said improvements upon request
in accordance with RCW 19.122.
Ordinance No. 5152
Exhibit A
September 17, 1998
Page 17
ATTACHMENT 1
CITY OF AUBURN, WASHINGTON
PUBLIC WAY AGREEMENT WITH PACIFIC FIBER LINK, L.L.C.
LOCATION AND IDENTIFICATION OF RIGHTS GRANTED
The CITY grants PACIFIC FIBER LINK, L.L.C. the right to construct and maintain an
underground fiber optic cable system within CITY street right-of-way of West Valley Highway,
beginning at the north city limits heading south along the east side of the right- of- way varying from
eighteen to twenty-seven feet from the centerline, continuing to a point 500 feet +/- north of the
intersection of 15th Street SW then crossing to the west side of the road and continuing south,
varying between twenty-one and forty-two feet west of centerline, to the south city limits, subject
to all the terms and conditions stated in this Agreement.
Ordinance No. 5152
Exhibit A
September 17, 1998
Page 14
ATTACHMENT 2
TERMS AND CONDITIONS OF PUBLIC WAY AGREEMENT
PACIFIC FIBER LINK, L.L.C.
1. A pre-construction conference shall be required at least 24 hours prior to commencing work
within CITY fight-of-way. (Seven days notice required to schedule conference. Call (206)
931-3010 for the Contracts Administrator or the Construction Manager.)
2. GRANTEE shall notify all affected property owners, in writing, a minimum of seven days
prior to starting construction in the area.
3. Construction shall be in compliance with plans submitted to and approved by the CITY
Department of Public Works.
4. GRANTEE, its successors and assigns, is given permission to enter upon the right-of-way
or public place for the purpose of performing the work described in a construction permit
which must be approved by the City Engineer or his/her designee.
5. After the installation, operation, maintenance, or removal of a utility or Facility the
GRANTEE shall restore all rights-of-way and public places to the same or equivalent
condition that existed prior to work commencement. All such work must meet the approval
of the City Engineer.
6. In the event that any damage of any kind, as determined solely by the CITY, to the CITY'S
property or rights-of-way is caused by the GRANTEE in the course of performing work
authorized by this Agreement, the GRANTEE will repair said damage at its sole cost and
expense. Repair work shall begin without delay, as directed by the CITY, and continue
without interruption until completed. If damage is extensive, the time allowed for repair will
be prescribed by the City Engineer and/or his/her designee. Failure to properly restore any
damages within 30 days notice will be referred to the City Attorney under Section 16.
entitled "ENFORCEMENT".
7. The City Engineer or his/her designee may at any time, do, order, or have done any and all
work considered necessary to restore to a safe condition any area left by the GRANTEE in
a condition dangerous to life or property. The GRANTEE shall be notified of any
substandard condition requiring correction by the CITY'S Construction Manager, and upon
failure of the GRANTEE to make said correction within the specific time flame allowed, the
CITY shall perform the correction and the GRANTEE shall pay to the CITY all costs of such
work, labor and materials. If GRANTEE fails to compensate the CITY for actual costs, the
CITY will exercise the performance bond to pay for any work of emergency nature.
Ordinance No. 5152
Exhibit A
September 17, 1998
Page 15
8. When the CITY deems it advisable to change the alignment or grade of any street or right-of-
way or public place or structure by widening, grading, re-grading, paving, improving,
altering or repairing same, the CITY and the GRANTEE will diligently pursue altemative
methods of achieving the CITY'S preferred alignment or grade of subject structure including,
but not limited to, sharing engineering expenses. If the GRANTEE has no alternatives
acceptable to the CITY, the GRANTEE shall, at its own cost and expense, raise, lower,
move, change or reconstruct such installations to conform with the plans of work ordered by
the CITY according to the time schedules described in Section 4 of this Agreement titled
"RELOCATION OF EQUIPMENT".
9. All provisions, conditions, requirements and regulations herein contained shall be binding
upon the heirs, successors and assigns of the GRANTEE and all privileges of the GRANTEE
shall be given to such heirs, successors and assigns as if they were specifically mentioned.
10. The CITY and GRANTEE recognize the paramount public interest in the right-of-way
subject to this Agreement. Should the public interest, determined by the CITY, require
consideration of termination of this Agreement, such procedures as outlined in Title 20,
Aubum CITY Code shall control termination.
11. GRANTEE, by accepting p~rmits pursuant to this Agreement, agrees to obtain information
from all utility departments and existing franchises regarding location and current status of
their installations before starting work. GRANTEE shall notify private property owners
adjoining, or in proximity to the right-of-way, including existing franchises, in writing when
such property is exposed to the possibility of injury or damage through performance of work
by GRANTEE. The GRANTEE shall make all advance arrangements necessary to protect
such property and/or utility from injury or damage.
12. The issuance of this Agreement to the GRANTEE does not in any way relieve GRANTEE
from compliance with any other applicable laws in performing the work subject to this
Agreement.
13. All road crossings shall be reviewed independently for feasibility of open cuts as opposed
to a push or bore.
14. GRANTEE shall, to the extent practicable, maintain a minimum five (5) feet horizontal
separation and one (1) foot vertical separation from any and all CITY utilities. An accuracy
of one (1) foot per one hundred (100) feet horizontal and vertical control will be required in
the certified record drawings provided to the CITY at completion of project.
Ordinance No. 5152
Exhibit A
September 17, 1998
Page 16