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HomeMy WebLinkAbout5708 ORDINANCE NO.5 7 0 8 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 TOUCH AMERICA, INC. WHEREAS, TOUCH AMERICA, INC. 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 TOUCH AMERICA, INC. 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 TOUCH AMERICA's 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. 5708 November 18,2002 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 TOUCH AMERICA, INC. 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, TOUCH AMERICA, INC. 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 TOUCH AMERICA, INC. A copy of said Agreement is attached hereto, designated as Exhibit "A" and incorporated by reference in this Ordinance. ------------- -------- ---- Ordinance No. 5708 November 18,2002 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: DEC - 2 2002 PASSED: OEC - 2 2002 APP\Ã~C - 2 2~~ - ~~', ~ PETER B. LEWIS MAYOR ATTEST: Published: /~ -} -{J L ------------------------- Ordinance No. 5708 November 18, 2002 Page 3 EXHIBIT "A" CITY OF AUBURN, WASHINGTON PUBLIC WAY AGREEMENT WITH TOUCH AMERICA, INC. WHEREAS, TOUCH AMERICA, INC. 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, TOUCH AMERICA, INC. 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, and TOUCH AMERICA, INC. agree as follows: PUBLIC WAYS AGREEMENT WITH TOUCH AMERICA, INC. TABLE OF CONTENTS Public Ways Agreement. Attachment 1, Location and Identification of Rights Granted Attachment 2, Terms and Conditions PAGE NO. 1-12 13 14-16 PUBLIC WAYS AGREEMENT SECTION 1. The City of Auburn, a Washington municipal corporation (hereinafter called the "CITY") hereby grants to TOUCH AMERICA, INC. (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 Exhibit A Ordinance No. 5708 Page 1 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. "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, Exhibit A Ordinance No. 5708 Page 2 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. 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: Exhibit A Ordinance No. 5708 Page 3 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 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 a construction 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 ($30,000.00). Once the installation and all related site restoration work has been completed to the CITY'S satisfaction and GRANTEE has submitted record plans as required by the CITY for the completed project, the CITY will release the bond. Exhibit A Ordinance No. 5708 Page 4 SECTION 6. FEES. As reimbursement for administration expenses, the GRANTEE shall pay an initial fee to the CITY of ($ 3,830.00) based upon the CITY'S estimate of costs to process the GRANTEE'S application, and the initial review of the plans required for the granting of this agreement. The Public Way Agreement is renewable at 5-year intervals and will require payment of those additional fees, which may be applicable at the time. Such fees are due and payable within 30 days of the issuance of this agreement. Nothing herein shall exclude the GRANTEE from any legal obligation to pay to the City additional fees for permits, inspections, or other issues related to the construction and/ or operation of the system described in Attachment 1. 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 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 Ways Agreement, or pursuant to any other Exhibit A Ordinance No. 5708 Page 5 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. 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 Ways Agreement. Exhibit A Ordinance No. 5708 Page 6 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 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: Exhibit A Ordinance No. 5708 Page 7 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 anyone 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 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 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 Exhibit A Ordinance No. 5708 Page 8 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 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. 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. Exhibit A Ordinance No. 5708 Page 9 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. 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. 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. 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 Exhibit A Ordinance No. 5708 Page 10 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. 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. 5708 Page 11 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 (Price Williams/Project Manager) at (406) 495 9314 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, W A 98001-4998 With a copy to: City Attorney CITY of Auburn 25 West Main Street Auburn, W A 98001-4998 Exhibit A Ordinance No. 5708 Page 12 The notices or responses to Touch America, Inc. shall be addressed as follows: Touch America, Inc. Attn: Director, Operations/Maintenance 130 North Main Street Butte, MT 59701 The CITY and GRANTEE 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 Zt~ DAY OF ~~('~ \\t,-b.¿', , 2002. CI~= Mayor PETE LEWIS 25 W. Main Auburn WA 98001-4998 ""' ._-"'~.~..~~ "- . ~~'<" -C'-t4){'ì z \ Zt""(· ¿. Date Attest: i2~&f:;!!~ddAJ City Clerk MPtjST DAN HElD, City Attorney Exhibit A Ordinance No. 5708 Page 13 Acknowledged and Accepted by: TQUCH AMERICA, INC.: ,/, '. /.// 1-) ¿ /,/1 /' '.. :://4 7/t~ {{t c¿¿#'4! " Signature/ ' J,~h~~ ate Authorized o if¿/ ,rJ ê;-? ¡{.(JJ '¡y' , b ,r ~,5r p (1 ¿P, '¡?¿ý ;;;///7 I'" / L? Print Name and Titl ;-r--¡<7 Ii? J; ,4 J,J;J,9 t J Þ 4~ / ~ /lfi 13/,//,/1'5' 4F~~ bit" /'/é' / ,¡ft:~')//I/ J;J/~/ ¿¡-Ç ~/ / Name, Address and Phone # ~¿:-/ ¿;/.¿/J - f1 / ff C rn~~ STATE OF vrA~HII~GfON ) ss. k'\.A \;i. (Iß n ) COUNTY OF ~ ú..-UIc) On this \ Î'µ' day of bu 1 ~ XA 2~02, before me, the undersig~d, a . N~tary Pu~lic in and (or the State rfm ~(~~ personally appeared ~ LJ~~ Q.~ domg busmess as \ ~ ........~ Ç\r<'&~ ~~ . , who . -ð- I executed the within and foregoing instrument, and acknowledged said instrument 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. . .k. I ~~Y PUBL~C. in ~nd for State of g~ldmgm ~~ MY COMMISSION expires:4L/tI.. 3, '7Ù)~ Exhibit A Ordinance No. 5708 Page 14 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 Ways Agreement granted pursuant to Ordinance No. 5702, attached hereto and incorporated herein by this reference. By: Name: Title: Date: 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. Exhibit A Ordinance No. 5708 Page 15 ATTACHMENT 1 CITY OF AUBURN, WASHINGTON PUBLIC WAY AGREEMENT WITH TOUCH AMERICA, INC. LOCATION AND IDENTIFICATION OF RIGHTS GRANTED The CITY grants TOUCH AMERICA, INC. the right to construct and maintain an underground fiber optic cable system across CITY street right-of-way. The Touch America, Inc. facilities will be installed within a portion of Puget Sound Energy's 100 foot wide fee owned right of way commonly referred to as the Puget Sound Electric Railway Right of Way lying in Sections 1, 12, 13 and 24 in Township 21 North, Range 4 East, W.M.; Section 36 in Township 22 North, Range 4 East, W.M.; all in King County, Washington. This installation will cross CITY right-of-way at 15th Street Southwest, West Main Street, 15th Street Northwest, 29th Street Northwest, 37th Street Northwest, South 285th Street and South 277th Street. Exhibit A Ordinance No. 5708 Page 16 ATTACHMENT 2 TERMS AND CONDITIONS OF PUBLIC WAY AGREEMENT TOUCH AMERICA, INC. 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. 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 Exhibit A Ordinance No. 5708 Page 17 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 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 Exhibit A Ordinance No. 5708 Page 18 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. 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. 5708 Page 19