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HomeMy WebLinkAbout5539 ORDINANCE NO. 5 5 3 9 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF AUBURN, WASHINGTON, AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE A PUBLIC WAY AGREEMENT BETWEEN THE CITY AND SPRINT COMMUNICATIONS COMPANY L.P. WHEREAS, SPRINT COMMUNICATIONS COMPANY L.P. has made application for a non-exclusive Public Way Agreement and the CITY has determined that the application is complete; and WHEREAS, it has been determined that SPRINT COMMUNICATIONS COMPANY L.P. has the financial, technical and legal ability to provide the services proposed in its application; and WHEREAS, there is capacity in the City's Public Ways, as defined in the Public Way Agreement, to accommodate SPRINT COMMUNICATIONS' proposed facilities; and WHEREAS, the damage or disruption, if any, of public or private facilities, improvements, service, travel or landscaping, including remedies, are addressed in the Public Way Agreement to the satisfaction of the CITY; and WHEREAS, the cost and disruption of construction within the Public Ways, as defined in the Public Way Agreement, will be minimized; and Ordinance No. 5539 May 1,2001 Page 1 WHEREAS, permission to use the Public Ways, as provided in the Public Way Agreement, is in the public interest and the effect, if any, on the public health, safety and welfare is minimized and addressed in the Public Way Agreement; and WHEREAS, the service SPRINT COMMUNICATIONS COMPANY L.P. will provide to the region is in the public interest; and WHEREAS, the Public Way Agreement requires that applicable federal, state, and City of Auburn telecommunication laws, ordinances, regulations and policies will be followed during the term of the Public Way Agreement; and WHEREAS, SPRINT COMMUNICATIONS COMPANY L.P. warrants that there are no plans or intentions to utilize the proposed Telecommunication System to provide Local Service, and recognizes the necessity to obtain a Franchise from the City prior to any offering of Local Service; NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF AUBURN, WASHINGTON, DO ORDAIN AS FOLLOWS: Section 1. The Mayor and City Clerk of the City of Auburn are hereby authorized to execute a Public Way Agreement between the City and SPRINT COMMUNICATIONS COMPANY L.P. A copy of said Agreement is attached hereto, designated as Exhibit "A" and incorporated by reference in this Ordinance. Ordinance No. 5539 May 1,2001 Page 2 Section 2. The Mayor is hereby authorized to implement such administrative procedures as may be necessary to carry out the directives of this legislation. Section 3. This Ordinance shall take effect and be in force five days from and after its passage, approval and publication as provided by law. INTRODUCED: ,Tu_l.y 2, 2001 PASSED: ,Tuly 2, 2001 APPROVED: July 2, 2001 CHARLES A. BOOTH MAYOR ATTEST: City Clerk APPROVED AS TO FORM: Michael J. Reynolds, City Attorney -n / Ordinance No. 5539 May 1, 2001 Page 3 EXHIBIT "A" CITY OF AUBURN, WASHINGTON PUBLIC WAY AGREEMENT WITH SPRINT COMMUNICATIONS COMPANY WHEREAS, Sprint Communications Company L.P. has applied to the CITY OF AUBURN for a non-exclusive Public Way Agreement for the installation, operation and maintenance of a Fiber-Optics Te]ecommunications trunk through System in, on, upon, along and/or across certain Public Way within the CITY OF AUBURN, and WHEREAS, the Ninth Circuit Court of Appeals has recently issued a decision which may affect the CITY OF AUBURN's communications franchise ordinances, and the parties would like to proceed with this Public Way Agreement without waiting for the ultimate resolution of the Court's decision. The parties will identify certain language in this Public Way Agreement that might be affected by the ultimate outcome of the Court's decision by placing it within brackets, and typing it in bold and underlined text. The parties agree, in Section 20 of this Agreement, to treat such language in certain ways depending upon the final outcome of the Court's decision. [WHEREAS, Sprint Communications Company L.P. warrants by acceptance of this Public Way Agreement that Local Service to the Auburn area, requiring a Franchise Agreement, is not contemplated at this time.] NOW, THEREFORE, the CITY OF AUBURN, and Sprint Communications Company L.P. agree as follows: Exhibit "A" Ordinance No. 5539 Sprint Network Real Estate PUBLIC WAYS AGREEMENT WITH SPRINT COMMUNICATIONS COMPANY L.P. TABLE OF CONTENTS PAGE NO. Public Way Agreement. 1-17 Attachment 1, Location and Identification of Rights Granted 18 Attachment 2, Terms and Conditions 19-21 Exhibit" A" Ordinance No. 5539 Page 2 of 21 SECTION 1. The City of Auburn, a Washington municipal corporation (hereinafter called the "CITY") hereby grants to Sprint Communications Company L.P., a Delaware limited partnership (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. (GRANTEE) shall at all times be subject to the exercise of the CITY'S police powers. SECTION 2. DEFINITIONS. "Affiliate" means a person that (directly or indirectly) owns or controls, is owned or controlled by, or is under common ownership or control with another person. "Cable television service" means the one-way transmission to subscribers of video programming and other programming service and subscriber interaction, if any, that is required for the selection or use of the video programming or other programming service. "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. Exhibit "A" Ordinance No. 5539 Page 3 of 21 "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. "Facilities" means all of the plant, equipment, fixtures, appurtenances, antennas, and other facilities necessary to furnish and deliver telecommunications services and cable television services, including but not limited to poles with crossarms, poles without crossarms, wires, lines, conduits, cables, communication and signal lines and equipment, braces, guys, anchors, vaults, and all attachments, appertenances, and appliances necessary or incidental to the distribution and use of telecommunications services and cable television services. "Local Service" means that local exchange service would be provided to customers (business and/or residential) within the corporate CITY limits of Auburn. "Master Permit" means the agreement in whatever form whereby a city or town may grant general permission to a service provider to enter, use, and occupy the right of way for the purpose of locating facilities. This definition is not intended to limit, alter, or change the extent of the existing authority of a city or town to require a franchise nor does it change the status of a service provider asserting an existing state- wide grant based on a predecessor telephone or telegraph company's existence at the time of the adoption of the Washington state Constitution to occupy the right of way. For the purposes of this subsection, a franchise, except for a cable television franchise, is a master permit. A master permit does not include cable television franchises. "Personal wireless services" means commercial mobil services, unlicensed wireless services, and common carrier Wireless exchange access services, as defined by federal laws and regulations. "Right of way" means land acquired or dedicated for public roads and street, but does not include: (a) State highways; (b) Land dedicated for roads, streets, and highways not opened and not improved for motor vehicle use by the public; (c) Structures, including poles and conduits, located within the right of way; (d) Federally granted trust lands or forest board trust lands; (e) Lands owned or managed by the state parks and recreation commission; or (f) Federally granted railroad rights of way acquired under 43 U.S.C. Sec. 912 and related provisions of federal law that are not open for motor vehicle use. Exhibit "A" Ordinance No. 5539 Page 4 of 21 "Telecomrnunications service" means the transmission of information by wire, radio, optical cable, electromagnetic, or other similar means for hire, sale, or resale tot he general public. For the purpose of this subsection, "information" means knowledge or intelligence represented by any form of writing, signs, signals, pictures, sounds, or any other symbols. For the purpose of this chapter, telecommunications service excludes the over-the-air transmission of broadcast television or broadcast radio signals. "Use permit" means the authorization in whatever form whereby a city or town may grant permission to a services provider to enter and use the specified right of way for the purpose of installing, maintaining, repairing, or removing identified facilities. SECTION 3. INSTALLATION OF EQUIPMENT. All Facilities shall be installed and maintained at such places and locations as shall least interfere with existing utilities and franchise rights, and with the free passage of traffic and in accordance with federal law and the laws of the State of Washington and Ordinances and Standards of the CITY regulating such construction. This includes the terms and conditions of any permit required and issued for construction of such Facilities. GRANTEE warrants as a condition of this Agreement that any equipment, Facilities and system installed constitutes a trunk-through system only which will not directly and separately service local businesses or residents in the CITY. Prior to selling, leasing, or otherwise transferring any Excess Capacity to any other person who intends to offer Local Service, GRANTEE shall provide written notice to the CITY, at least 30 days prior to such transfer, of its intent to make such a transfer. [In addition, GRANTEE shall not complete such lease, sale or transfer of Excess Capacity, until the transferee has obtained a Franchise from the CITY.] SECTION 4. RELOCATION OF EQUIPMENT. Emergencies: Whenever the CITY determines it is necessary that any Facilities of GRANTEE be removed or relocated to repair an adjacent CITY utility or to protect and assure the public safety during an Emergency event, GRANTEE shall, within 24 hours of written notice from the CITY, remove or relocate such Facilities as directed to an area within the CITY public way mutually agreed upon, at no cost to the CITY. Routine: 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 Exhibit "A' Ordinance No. 5539 Page 5 of 21 business 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. CITY, pursuant to state law, shall notify Grantee as soon as it has knowledge of the need for relocation. GRANTEE shall within the first 14 business 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 business 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) business 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. Nothing herein shall be construed as a waiver of GRANTEE's right, if any, to recover its relocation expenses on any project where utility relocation reimbursement funds are available. Notwithstanding anything to the contrary herein, if the CITY requires GRANTEE to relocate its equipment during the first five years of this Agreement, then the CITY will reimburse GRANTEE for the cost of relocating its equipment. SECTION 5. RECORD OF INSTALLATION. GRANTEE shall provide to the CITY, upon the CITY'S request, copies of available current drawings in use by GRANTEE showing the location of GRANTEE'S Facilities within public right-of-way. With respect to excavations within any area, the CITY and GRANTEE shall comply with the provisions of Chapter 19.122 RCW and any other applicable State law or CITY Ordinance. Before issuance of the excavation permit, GRANTEE or its contractors shall post a performance bond acceptable to the CITY from a surety company that is authorized to conduct business in the State of Washington in the amount of 125% of the cost of construction within the CITY ($ amount to be determined). Once the installation and all related site restoration work has been completed to the CITY'S satisfaction and GRANTEE has submit-ted record plans as required by the CITY for the completed project, the CITY will release the bond. Exhibit "A" Ordinance No. 5539 Page 6 of 21 SECTION 6. FEES. As reimbursement for administration expenses, GRANTEE shall pay an initial fee to the CITY of two thousand one hundred dollars and no cents ($2,100.00) based upon the CITY'S costs to prepare the Public Way Agreement. Public Way Agreement renewals at 5-year intervals will require the fee applicable at the time. Fees are due and payable at time of permit issuance and renewal [in accordance with Chapter 20.04 of the CITY Code. ] A Construction Permit will be issued for the actual installation of the improvements within City Right of way. Fees are due and payable at the time the Construction Permit is issued. The permit fees and conditions shall be in accordance with Chapter 12.24 of the City Code. A Construction Permit shall be required for any subsequent work done within Public Right of Way. 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 Way Agreement are the proximate cause. The GRANTEE further releases, covenants not to bring suit and agrees to indemnify, defend and hold harmless the CITY, its elected and appointed officials, officers, employees, agents, representatives, engineers, consultants, and volunteers from any and all claims, costs, judgments, awards, or liability to any person including claims by the GRANTEE's own employees, to which the GRANTEE might otherwise have immunity under Title 51 RCW, arising against the CITY solely by virtue of the CITY's ownership or control of the rights-of-way or other public properties, by virtue of the GRANTEE's exercise of the rights granted herein, or by virtue of the CITY's permitting the GRANTEE's use of the CITY's rights-of-way or other public property, based upon the CITY's inspection or lack of inspection of work performed by the GRANTEE, its agents and servants, officers or employees in connection with work authorized on the CITY's property or property over which the CITY has control, pursuant to this Public Way Agreement, or pursuant to any other permit or approval issued in connection with this Public Way 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 Exhibit "A" Ordinance No. 5539 in performance of work or services permitted under this Public Way Agreement. Inspection or acceptance by the CITY of any work performed by the GRANTEE at the time of completion of construction shall not be grounds for avoidance of any of these covenants of indemnification. Said indemnification obligations shall extend to claims which are not reduced to a suit and any claims which may be compromised prior to the culmination of any litigation or the institution of any litigation. In the event that the GRANTEE refuses the tender of defense in any suit or any claim, said tender having been made pursuant to the indemnification clauses contained herein, and said refusal is subsequently determined by a court having jurisdiction (or such other tribunal that the parties shall agree to decide the matter), .to have been a wrongful refusal on the part of the GRANTEE, then the GRANTEE shall pay all of the CITY's costs for defense of the action, including all reasonable expert witness fees and reasonable attorneys' fees and the reasonable costs of the CITY, including reasonable attorneys' fees for recovering costs under this indemnification clause. In the event of liability for damages arising out of bodily injury to persons or damages to property caused by or resulting from the concurrent negligence of the GRANTEE, and the CITY, its elected and appointed officials, officers, employees, agents, representatives, engineers, consultants, and volunteers, the GRANTEE's liability hereunder shall be only to the extent of the GRANTEE's negligence. It is further specifically and expressly understood that the indemnification provided herein constitutes the GRANTEE's waiver of immunity under Title 51 RCW, solely for the purposes of this indemnification. This waiver has been mutually negotiated by the parties. The provisions of this Section shall survive the expiration or termination of this Public Way Agreement. In addition, the terms of this Section are subject to RCW 4.24.115. 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 Way 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, Exhibit "A' Ordinance No. 5539 Page 8 of 21 consultants, and volunteers. The GRANTEE further agrees to indemnify, hold harmless and defend the CITY against any claims for damages, including, but not limited to, business interruption damages and lost profits, brought by or under users of the GRANTEE's facilities as the result of any interruption of service due to damage or destruction of the user's facilities caused by or arising out of activities conducted by the CITY, its elected and appointed officials, officers, employees, agents, representatives, engineers, consultants, and volunteers, except to the extent any such damage or destruction is caused by or arises from the sole negligence or any willful or malicious actions on the part of the CITY, its elected and appointed officials, officers, employees, agents, representatives, engineers, consultants, and volunteers. SECTION 8. INSURANCE. GRANTEE shall, as a condition of this Public Way Agreement, secure and maintain the following liability insurance policies insuring both the GRANTEE and the CITY, and its elected and appointed officers, officials, agents, employees, representatives, engineers, consultants, and volunteers as additional insureds against claims for injuries to persons or damages to property which may arise from or in connection with the exercise of the rights, privileges, and authority granted to the GRANTEE: 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 hazard with limits of not less than $3,000,000.00; E. The liability insurance policies required by this Section shall be maintained by the GRANTEE throughout the term of this Public Way Agreement and Exhibit "A" Ordinance No. 5539 Page 9 of 21 such other period of time during which the GRANTEE is operating without a Public Way Agreement. hereunder, or is engaged in the maintenance or removal of its telecommunications facilities. The GRANTEE shall provide an insurance certificate, together with an endorsement naming the CITY, and its elected and appointed officers, elected officials, agents, employees, representatives, engineers, consultants, and volunteers as additional insureds, to the CITY prior to the commencement of any work or installation of any utility or telecommunications facilities pursuant to this Public Way Agreement. Any deductibles or self-insured retentions must be declared to and approved in writing by the CITY prior to the Public Way 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, (return receipt requested) of a written notice addressed to the City Clerk of such intent to cancel or not to renew." G. Within 30 days after receipt by the CITY of said notice, and in no event later than 15 days prior to said cancellation or intent not to renew, the GRANTEE shall obtain and furnish to the CITY replacement insurance policies meeting the requirements of this Section. Any lapse in the required insurance coverage shall be cause for termination of this Public Way 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. Exhibit " A' Ordinance No. 5539 Page iO of 21 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 1st of said renewal year. [In the event that GRANTEE shall decide to offer at any time Local Service from its equipment, Facilities, or underground fiber optic cable system to business and/or residential customers within Auburn's incorporated area, it shall apply for and obtain a franchise agreement from the CITY prior to the offer of or delivery of such Local Services. In order to assure adequate time to apply for and negotiate the terms of such a franchise, GRANTEE shall provide written notice of its intent to offer Local Services and submit an application for franchise 120 days prior to the desired date of commencing Local Service. ] SECTION 13. TERMINATION. [The CITY and GRANTEE recognize the paramount public interest in the right-of- way subject to this Agreement. Should the public interest, determined by the CITY, require consideration of termination of this Agreement, such procedures as outlined in Title 20, Auburn CITY Code shall control termination.] Exhibit "A" Ordinance No. 5539 Page 11 of 21 SECTION 14. VALIDITY OF TERMS. [If any material 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 Local Service from its equipment, Facilities, or underground fiber optic cable system to CITY area businesses and/or residential customers.] SECTION 15. NON-TRANSFERABLE. The rights granted by this Agreement inure to the benefit of GRANTEE, and any parent, subsidiary, Affiliate, heir, successor, or assigns now or hereafter existing. GRANTEE may assign its rights under this Agreement to a parent, subsidiary, Affiliate, heir, or successor so long as (1) such parent, subsidiary, Affiliate or successor, assumes all obligations of GRANTEE hereunder; (2) such parent, subsidiary, Affiliate, heir or successor is bound to the same extent as GRANTEE hereunder; and (3) the CITY receives sufficient evidence of such agreement and notice to confirm that the above conditions are satisfied. The rights shall not be assignable to parties other than a parent, subsidiary, or Affiliate, or successor without the express, written consent of the governing body of the CITY, which shall be determined by the CITY within 60 days. Any consent is to be evidenced by written agreement with the CITY that fully recites the terms and conditions, if any, upon which consent is given. SECTION 16. ENFORCEMENT. If the CITY seeks enforcement of any terms or conditions of this Agreement in court, or if a lawsuit is instituted with respect to this Agreement, GRANTEE agrees to pay the CITY'S reasonable attorney's fees and costs and other allied expenses incurred by the CITY regarding said enforcement or lawsuit if the CITY is the substantially prevailing party. Exhibit "A" Ordinance No. 5539 Page 12 of 21 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 GRANTEE's Operations Center at 1 (800) 877-7330 at which a GRANTEE employee can be reached twenty-four (24) hours a day, seven (7) days a week regarding such problems or complaints. SECTION 18. EFFECTIVE DATE. This Agreement shall take effect and be in force upon execution by the undersigned CITY official and the authorized authority of GRANTEE. SECTION 19. NOTICE. Unless otherwise expressly agreed between the parties, every notice or response to be served upon the CITY or GRANTEE shall be in writing, and shall be deemed to have been duly given to the required party five (5) business days after having been posted in a properly sealed and correctly addressed envelope by certified or registered mail, postage prepaid, at a Post Office or branch thereof regularly maintained by the U.S. Postal Service. The notices or responses to the CITY shall be addressed as follows: City Clerk 25 West Main Street Auburn, 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 ( Sprint Communications Company L.P.) shall be addressed as follows: Sprint Communications Company L.P. Manager, Network Real Estate - Right of Way Mailstop: KSOPHI0306-3C380 6160 Sprint Parkway Overland Park, Kansas 66251 Exhibit "A" Ordinance No. 5539 Page 13 of 21 With copies of any default notice to: Svrint Communications Comvanv L.P. Corporate Legal Department Mailstop: KSOPHT0101-Z2020 6391 Sprint Parkway Overland Park, Kansas 66251-2020 The CITY and GRANTEE may designate such other address or addresses from time to time by giving notice to the other. SECTION 20. COURT OF APPEALS DECISION. The CITY and GRANTEE hereby agree that the sections of this Public Way Agreement that might be affected by the Ninth Circuit Court of Appeals decision in the City of Auburn v. Owest Corporation case, Case Nos. 99-36173 and 99-36219 (the "Court's Decision") have been placed in brackets and typed in bold and underlined text (the "Highlighted Text"). If the Court's Decision is ultimately overturned in full, the parties agree that the Highlighted Text shall remain in this Public Way Agreement in full force and effect. If the Court's Decision is ultimately upheld in full, the parties agree that the Highlighted Text will not apply to this Public Way Agreement. If the Court's Decision is partially upheld and partially overturned, then the parties will conduct negotiations in good faith to determine which portions of the Highlighted Text will remain in effect and which portions of the Highlighted Text will not apply to this Public Way Agreement, all in a manner that is consistent with the final outcome of the Court's Decision. Until there is a final outcome of the Court's Decision, the parties reserve their rights to enforce or challenge the Highlighted Text should any issues related thereto arise between the parties. Exhibit "A" Ordinance No. 5539 Page i 4 of 21 PASSED BY THE CITY COUNCIL OF THE CITY OF AUBURN, WA I GTON, AT ITS REGULAR MEETING ON THE d~----' DAY OF Ci~(BURd: 2001. ~(~. ~0Z~ o r2~ -o/ Mayor Charles A. Booth Date 25 W. Main Auburn WA 98001-4998 Attest: City Clerk City Attorney Acknowledged and Accepted by: SPRINT COMMUNICATIONS COMPANY L.P.: Manager Network Real Estate Right of Way Sprint Communications Company L.P. Hailstop: KSOPHI0306-3C380 6160 Sprint Parkway Overland Park, Kansas 66251 (913) 762-7676 Exhibit "A" Ordinance No. 5539 Page ! 5 of 21 STATE OF KANSAS ) COUNTY OF JOHNSON )ss. ) On this ~(~ day of ~3 c~[ y 2001, before me, the undersigned, a Notary Public in and for the State of Kansas, personally appeared Timothy A. Dismond doing business as Sprint Communications Company L.P., who executed the within and foregoing instrument, and acknowledged said instrument to be the free and voluntary act and deed of said limited partnership 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 Kansas, residing in d0 s ~ Co ~ ~ t y/~ ~ COMMISSION. expires: ,~ '-30 - O ~ Exhibit "A" Ordinance No. 5539 Page 16 of 21 STATEMENT OF ACCEPTANCE GRANTEE itself, its successors and assigns, hereby accepts and agrees to be bound by all terms, conditions and provisions of the Public Way Agreement granted pursuant to Ordinance No. ~ attached hereto and incorporated herein by this reference. /~_ ~, Name: Timothy A. Dismond Title: Manager, Network Real Estate - Right of Way Date: 07/23/01 Attached hereto is a copy of the executed Ordinance approving the execution of the Public Way Agreement by the CITY and a assistant secretary certificate therefor duly authorizing Timothy A. Dismond executing this Statement of Acceptance to do so. Exhibit "A" Ordinance No. 5539 Page 17 of 21 ATTACHMENT 1 CITY OF AUBURN, WASHINGTON PUBLIC WAY AGI~EEMENT WITH SPRINT COMMUNICATIONS COMPANY L.P. LOCATION AND IDENTIFICATION OF RIGHTS GRANTED The CITY grants Sprint Communications Company L.P. the right to construct and maintain an underground fiber optic cable system within CITY street right-of-way of, subject to all the terms and conditions stated in this Agreement. North Route Narrative Dropping off of the UP Railroad near the new 44th St. NW, the fiber route nms into 44th St. NW, crossing D St ZnW~i~W;s~ the BNSF Railroad tracks and then to 80th Ave. S. The route then turns south to Ave. S. until the new 42na St. NW, where it turns east to run along 42na St. NW. The route continues until 85th Ave. S., where the fiber will turn south and head to the facility at 4103 C St. South Route Narrative From the Facility at 4103 C St., the fiber will run south along 42"a St. NE until it runs into 37th fiber will turn west and run along 37 St. NW, crossing B St. NW, the St. NW. At that point the th BNSF Railroad tracks, and then splicing back into Sprint's backbone fiber along the UP tracks. Exhibit "A" Ordinance No. 5539 Page 18 of 21 ATTACHMENT 2 TERMS AND CONDITIONS OF PUBLIC WAY AGREEMENT SPRINT COMMUNICATIONS COMPANY L.P. 1. A pre-construction conference shall be required at least 24 hours prior to commencing work within CITY right-of-way. (Seven days notice required to schedule conference. Call (206) 931-3010 for the Contracts Administrator or the Construction Manager.) 2. GRANTEE shall notify all affected property owners, in writing, a minimum of seven days prior to starting construction in the area. 3. Construction shall be in compliance with plans submitted to and approved by the CITY Department of Public Works. 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. 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 frame allowed, the CITY shall perform the correction and the GRANTEE shall pay to the CITY all costs of such work, labor and materials. If GRANTEE fails to compensate the CITY for actual costs, the Exhibit "A' Ordinance No. 5539 Page 19 of 21 CITY will exercise the performance bond to pay for any work of emergency nature. 8. When the CITY deems it advisable to change the alignment or grade of any street or right-of-way or public place or structure by widening, grading, re-grading, paving, improving, altering or repairing same, the CITY and the GRANTEE will diligently pursue alternative methods of achieving the CITY'S preferred alignment or grade of subject structure including, but not limited to, sharing engineering expenses. If the GRANTEE has no alternatives acceptable to the CITY, the GRANTEE shall, at its own cost and expense, raise, lower, move, change or reconstruct such installations to conform with the plans of work ordered by the CITY according to the time schedules described in Section 4 of this Agreement titled "RELOCATION OF EQUIPMENT". 9. All provisions, conditions, requirements and regulations herein contained shall be binding upon the heirs, successors and assigns of the GRANTEE and all privileges of the GRANTEE shall be given to such heirs, successors and assigns as if they were specifically mentioned. 10. [The CITY and GRANTEE recognize the paramount public interest in the right-of-way subject to this Agreement. Should the public interest, determined by the CITY, require consideration of termination of this Agreement, such procedures as outlined in Title 20, Auburn CITY Code shall control termination.] 11. GRANTEE, by accepting permits pursuant to this Agreement, agrees to obtain information from all utility departments and existing franchises regarding location and current status of their installations before starting work. GRANTEE shall notify private property owners adjoining, or in proximity to the right-of- way, including existing franchises, in writing 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 Exhibit "A" Ordinance No. 5539 Page 20 of 21 utilities. An accuracy of one (1) foot per one hundred (100) feet horizontal and vertical control will be required in the certified record drawings provided to the CITY at completion of project. 15. GRANTEE shall, within 60 days after completion of construction, provide to the CITY a computer disc containing record drawings in AutoCAD drawing file format and a complete set of plans, drawn to scale and certified to the CITY as accurately depicting the horizontal and vertical location and configuration of all Facilities constructed pursuant to the agreement. The City Engineer shall have the discretion to prescribe the format and/or media of said record drawings, consistent with CITY codes and policies. 16. Contractors or agents of GRANTEE shall obtain any and all other necessary permits, licenses, and approvals as required by law. 17. GRANTEE shall provide and maintain a means of locating said improvements upon request in accordance with RCW 19.122. Exhibit "A" Ordinance No. 5539 Page 21 of 21