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04 .t!t . \ PRo C 100,"
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JOINT TRENCH OR FACiliTIES RELOCATION
AGREEMENT WITH CITY
This ~?li\\ Trench or Facilities Relocation Agreement with Municipality (the "Agreement") is entered
into as of the .ff-'day of ~Il l~ ' 2005 (the~'Effective Date") by and between the City of Auburn,
a(n) municipal corporati King ounty, WA (the "City"), and Owest Corporation, a Colorado corporation
("Qwest").
1. The Project:
1.1 The City is a municipality or other governmental or quasi-governmental entity in the State of
Washington (the "State"). Owest provides telecommunications services in the State.
1.2 The City intends to undertake the capital improvement project described in Exhibit A (the
"Project"). In connection with the Project, it is necessary or desirable that Owest install
telecommunications facilities in the area in which the Project will be performed (the "Site") or that
Owest's existing telecommunications facilitates at the Site be moved. The new or moved
telecommunications facilities and all associated equipment shall be referred to in this Agreement as
the "Facilities".
1.3 Owest has requested that as paftof the Project the City, acting through its contractor (the
"Contractor"), perform certain work in connection with the Facilities on the Site for Owest, which
work is more specifically described in Exhibit B (the "Work"), in accordance with the schedule set
forth in Exhibit B (the "Work Schedule").
1.4 In consideration for performance of the Work and for the other promises and covenants contained
in this Agreement, Owest agrees to pay to the City the amount set forth in Exhibit C (the
"Payment") in accordance with the schedule described in Exhibit C (the "Payment Schedule");
provided, that Owest shall not make any final payment to the City required by Exhibit C until Owest
has approved the Work as provided in the section of this Agreement titled "Completion of the
Work", Payment by Owest will not constitute acceptance of all or any part of the Work.
2. The Term:
2.1 The term of this Agreement (the "Term") will commence on the Effective Date and continue until all
obligations are met unless the Agreement is otherwise terminated in accordance with the
Agreement. In no event will the Term extend beyond December 31,2006.
2.2 Either party may terminate this Agreement, in whole or in part, for its convenience upon thirty (30)
calendar days' prior written notice. The City will be entitled to payment for all Work satisfactorily
completed as of the date of terminatiol"). .owest will be entitled to receive all Work completed or in
progress as of the date of termination. Neither party will have any other liability arising out of
termination. .
2.3 All representations, warranties and indemnifications contained in the Agreement will survive the
termination of this Agreement. In addition and not in limitation ofthe foregoing, the sections entitled
Warranty, Confidential Information, Indemnification, Limitation of Liability, Records and Audits and
Dispute Resolution will survive the termination' or expiration of this Agreement. Expiration or
termination of this Agreement will not relieve either party from its obligations arising under the
Agreement prior to expiration or termination.
3. The Work:
3.1 The City shall, at no cost or expense to Owest, prepare and provide to Owest engineering drawings,
specifications and construction standards for the Project (the "City's Specifications"). The City
shall choose and pay all costs associated with the Contractor and shall provide to Owest at least
1
CONFIDENTIAL INFORMATION Disclose and distnbute solely to those having a need to know.
Rev. 9-04
ten (10) calendar days' prior written noti<:;e prior to the beginning of the Project and of the Work. In
addition, the City shall perform all necessary excavation, bedding, backfill, off-Site disposal, and
Site restoration for the placement of the Facilities, along with the coordination of other utilities
participating in the Project. The City shall perform all flagging and traffic control, including
uniformed officers when required, for any necessary excavation. The City will notify Owest of any
changes in the Work required by the City, and will obtain Owest's prior written approval of such
changes before commencement of any changes to the Work.
3.2 Within the number of days set forth in the Work Schedule after Owest's receipt of the City's
Specification from the City, Owest shall, at no cost or expense to the City, prepare and provide to
the City engineering drawings, specifications, construction standards and quantities pursuant to
which the Work must be performed by the City ("Qwest's Specifications"). Owest's
Specifications shall show in detail the quantity and size of all facilities and equipment to be used by
Owest that the City will install pursuant to this Agreement. Owest shall notify the City in writing of
any changes it wishes to make in Owest's Specifications, and such changes shall be made, if
feasible.
3.3 The Work includes installation of new vaults and/or conduit by the City's Contractor. Owest will
supply and install all wires, conductors and any other equipment needed to complete the Owest
portion of the Project as provided in Exhibit A in accordance with the Work Schedule set forth in
Exhibit B. The vaults and conduit shall be owned solely by Owest, and Owest shall be responsible
for all maintenance in connection with the vaults and conduits except for defects covered by the
warranty contained in this Agreement. Owest 'Will perform cut-over and transfer of existing Owest
customers to the new or relocated Facilities and/or remove any replaced aerial Owest Facilities or
underground Owest Facilities that are in conduit or manhole structures only in accordance with the
Work Schedule set forth in Exhibit B. Owest shall in no event be required to perform a cut-over or
transfer or to remove any affected Facilities prior to completion of any replacement Facilities in
accordance with this Agreement and Owest's approval of the replacement Facilities. The Facilities
and all associated equipment shall be owned solely by Owest, and Owest shall be responsible for
all maintenance in connection with the Facilities. To the extent that it has the right to do so, upon
approval of the Work by Owest, the City shall grant, provide and/or assign to Owest any permits or
approvals required to access, occupy, use or operate the Facilities or any materials or facilities
used in connection with the Facilities.
3.4 Since the Work involves excavating, the City will ensure that the Contractor notifies all utility
companies and others who may have underground plant in the vicinity of the Work and that the
Contractor obtains appropriate information on the location of all buried cable and utilities prior to
performing any Work. The City shall hold the Contractor liable to locate, expose and protect from
damage all existing underground Facilities, including but not limited to electrical, telephone, water,
gas and sewer. In addition to its indemnification obligations contained in this Agreement, if any
existing underground or other Facilities are damaged directly or indirectly in connection with the
Work, the City will ensure prom pt repair or replacement of all damaged or destroyed facilities. The
City will ensure that immediate temporary repairs are made and will immediately report the damage
to the property owner and to Owest and will ensure that no permanent repairs are made unless the
consent of the property owner has first.been obtained. Repairs will be made within forty-eight (48)
hours after receiving permission from the property owner, unless otherwise agreed to by Owest. At
Owest's sole option, Owest may elect, rather than having the City make any repair described in this
subsection, to have the repair made by Owest's employees or contractors. If Owest or its
contractor performs the repair, Owest will invoice the City for Owest's reasonable and documented
costs, including without limitation labor costs, and the City will pay Owest for such costs within forty-
five (45) calendar days after receipt of an invoice.
3.5 Owest will be responsible for providing all traffic control associated with the installation and/or
removal of Facilities for which Owest is responsible pursuant to this Agreement, including the
pulling of cables and associated equipment.
3.6 The City will be responsible for performing all traffic control associated with the installation,
relocation, and/or removal of Facilities for which the City is responsible pursuant to this Agreement.
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3.7 The City shall obtain any and all licenses, permits and approvals required for the Work for which the
City is responsible pursuant to the Agreement
3.8 The City and Owest agree that the WorkwiU be performed in accordance with all applicable federal,
state and local laws, rules and regulations ar)d the requirements of whoever owns or has jurisdiction
over the rights of way in which the Work is to be performed.
3.9 Owest shall have the right at all times to observe and inspect the performance of the Work3,1 0 To
the extent that performance of the Work requires the use or installation of any materials, and unless
as otherwise agreed to in writing by the parties, Owest shall arrange for the purchase and delivery
of materials to the Site in accordance with the Project Schedule, If Owest and the City agree that
the City will supply any materials, the materials will be new and shall be of the specific type
designated by Owest.
3.10 Owest and the City shall maintain continued coordination regarding the Project, and the City shall
ensure that the Contractor also participates in the coordination. This coordination shall include but
not be limited to a pre-construction meeting. The City shall be responsible for the scheduling of
these meetings.
3.11 The City will be responsible to Owest for acts and omissions of the City's and the Contractor's
employees and subcontractors and each of their agents and employees, and any other persons
performing portions of the Work.
4. Completion of the Work:
Owest shall make all reasonable attempts to inspect the Contractor-installed vaults and/or conduit within
two (2) calendar days of completion. Inspection and acceptance by Owest of the installed vaults and/or
conduit will constitute approval for Contractor backfill of the trench. If rejected by Owest for any
reasonable objection or deficiency, Owest shall deliver written notice to the City within three (3) calendar
days, The City and/or Contractor will, at their own expense, correct the problem within ten (10) calendar
days after receipt of Owest's notice. The foregoing procedure will be repeated until Owest finally
approves the vault and/or conduit installation.
5. Changes:
If conditions or circumstances require a change in the Project or the Work, each party shall agree in
writing to any changes, including without limitation payment responsibilities, prior to commencement of the
Work or the changes. Neither party shall be responsible for any changes to the Work (including without
limitation payment responsibilities) made without its prior written consent.
6. Warranty:
In addition to any other express or implied obligations under the Agreement, the City warrants, for a period
of one (1) year after the Final Acceptance Date of the Work), that all labor, workmanship, components,
materials and other parts of the Work performed or provided by the City's Contractor will be free from
defects in material and workmanship under normal use and service, will be performed in accordance with
industry standards and will conform in all respeGts I,yith the requirements of Owest's Specifications. The
warranty included in this section will be restricted to. the trench, backfill and restoration provided by the
City and the placement of Owest provided conduitby the City's contractor in the City's trench. This time
period relates only to the specific obligation of the City to correct the Work, and has no relationship to the
time within which Owest may seek to enforce the City's obligations under the Agreement or within which
the City must comply with the Agreement. Upon notice from Owest, the City will immediately, at its own
expense, correct and remedy any defects in the Work occurring during the Term or during the warranty
period. If the City fails to promptly correct nonconforming Work, Owest may correct the Work itself or hire
another contractor to do so and the City shall pay for all reasonable and verifiable costs of correction
promptly upon demand by Owest.
7. Liens:
The City warrants that no mechanics' liens or other claims or demands, including but not limited to
personal injury, death, property damage, non-payment or other liability claims, will be filed or maintained
by it, the Contractor, subcontractors or any other third party against any Owest equipment, real estate or
rev. 1-05
3
other property on account of the Work. Owest reserves the right, before making any payment, or at any
time during the progress of the Work, to require the City, the Contractor and any subcontractor to furnish
evidence in form and substance acceptable to Owest that all claims, liens and causes of action, if any, for
the payment of wages or salaries or the payment of charges for labor, materials, tools, machinery, or
supplies have been satisfied, released or settled.
8. Delays:
Owest agrees to pay the cost of any reasonable, verifiable and substantiated claims made by the City for
delays to the Project that are solely caused by Owest. These claims may include delays caused by Owest
installing the Facilities or delays caused by Owest receiving its materials.
9. Dispute Resolution:
Any claim, controversy or dispute which arises between Owest and the City (a "Dispute") which the
parties are unable to settle through consultation and negotiation shall be resolved fully and finally by
binding arbitration under the Commercial Rules of the American Arbitration Association (the "AAA"). A
single arbitrator engaged in the practice of law, who is knowledgeable about the subject matter of this
Agreement and of the Dispute, shall conduct the arbitration. The arbitration need not be administered by
the AAA unless the parties cannot otherwise agree upon the selection of an arbitrator within thirty (30)
calendar days after one party gives the other party a written demand for arbitration. The arbitration shall
be conducted in the area in which the Site is located. The laws of the state in which the Site is located
shall govern the construction and interpretation of this Agreement, except with respect to provisions
related to conflict of laws. The arbitrator may, upon a showing of good cause, expand the discovery
permitted by the AAA rules and extend any applicable deadlines. The arbitrator's decision and award shall
be final, conclusive and binding, and judgment maybe entered upon it in accordance with applicable law
in any court having jurisdiction, Either party may request from the arbitrator injunctive relief to maintain
the status quo until such time as the arbitration award is rendered or the Dispute is otherwise resolved.
Either party may seek a temporary restraining order from an appropriate court of law for a period of time
needed for the designation of an arbitrator and the arbitrator's assuming responsibility for the Dispute.
The arbitrator shall not be empowered to award, nor shall any party be entitled to receive, any damages or
awards that are barred by the "Limitation of Liability" section of this Agreement. The arbitrator shall issue
an award no later than sixty (60) calendar days after the commencement of the arbitration hearing unless
the parties agree otherwise. Each party shall bear its own costs and attorneys' fees, and the parties shall
share equally the fees and expenses of the arbitrator. Notwithstanding anything in this section to the
contrary, either party may terminate this Agreement for convenience as set forth in the section of this
Agreement titled "The Term" without following the dispute resolution process outlined in this section. The
parties agree to keep all disputes confidential except as necessary in connection with a judicial challenge
to or enforcement of an award or unless otherwise required by law or judicial decision. The arbitrator may
issue orders to protect the confidentiality of proprietary information, trade secrets or other sensitive
information. .
10. Insurance:
10.1 The City shall, and shall require that the Contractor, at all times during the term of its contract with
the City and until 30 days after the physical completion date, obtain and maintain at its own cost and
expense the insurance coverage listed below with insurers licensed to write coverage in the State
and having a minimum "Bests" rating of A- VII. The Contractor shall require its subcontractors and
agents performing Work to maintain the same types of coverage with limits that are appropriate for
the type and amount of Work being performed.
(A) Workers' Compensation, as required by the Industrial Insurance Laws of the State of
Washington. As respects Worker' Compensation insurance in the state of Washington, Contractor
shall secure its liability for industrial injury to .its employees in accordance with the provisions of
RCW Title 51. .
(B) Commercial General liability insurance providing coverage for bodily injury, including death,
personal injury and property damage. Such insurance shall include underground hazard coverage
(commonly referred to as "U" coverage), products/completed operations, premises operations, and
rev. 1-05
4
contractual liability with respect to liability assumed by the City hereunder. This insurance shall also
include collapse hazard coverage (commonly referred to as "C" coverage) if the Work may cause
structural damage due to excavation, burrowing, tunneling, caisson work or under-pinning. The
limits of liability for this coverage shall be not less than:
Each Occurrence Limit
General Aggregate Limit
Products-Completed Operations Aggregate
Personal and Advertising Injury Limit
$1,000,000
$2,000,000
$2,000,000
$1,000,000
per occurrence combined single limit for bodily injury or property damage. These limits of liability
can be obtained through any combination of primary and excess or umbrella liability insurance.
(C) Commercial Automobile liability insurance covering the use and maintenance of owned,
non-owned and hired vehicles, The limits of liability for this coverage shall be not less than One
Million Dollars ($1,000,000,00) per occurrence combined single limit for bodily injury or property
damage. These limits of liability can be obtained through any combination of primary and excess or
umbrella liability insurance.
10.2 The City shall forward to Owest certificates of such insurance issued by the insuring carrier(s) or
equivalent documentation for both the City and the Contractor. The insuring carrier(s) may use the
ACORD form that is the insurance industry's standard certificate of insurance form. The insurance
certificates shall provide that: (1) Owest is named as an additional insured; (2) thirty (30) calendar
days prior written notice of cancellation of, or material change or exclusions in, the policy to which
the certificates relate shall be given to Owest; (3) certification that underground hazard coverage
(commonly referred to as "U" coverage) is part of the coverage; and (4) the words "pertains to all
operations and projects performed on behalf of the certificate holder" are included in the description
portion of the certificate. The Work may not be commenced until all obligations set forth in this
section have been fulfilled. The fulfillment of these obligations shall not relieve the City of any
liability under this Agreement or in any way modify the City's obligations to indemnify Owest.
10.3 Whenever any work is performed requiring the excavation of soil or use of heavy machinery within
fifty (50) feet of railroad tracks or upon railroad right-of-way, a Railroad Protective Liability
Insurance policy will be required. Such policy shall be issued in the name of the Railroad with such
limits as required by the Railroad for bodily injury, property damage or physical damage to property.
In addition, such policy shall name Owest as the contractor/subcontractor on the declarations page
with respect to its interest in the specific job. This insurance policy shall be in form and substance
satisfactory both to Owest and the railroad company and shall be delivered to and approved by both
Parties prior to the entry upon or use of such railroad property.
11. Indemnification:
11.1 In addition to the City's obligation to obtain and keep, and ensure that the Contractor obtains and
keeps, insurance as set forth above, the City will, to the extent permitted by law, indemnify, defend
and hold harmless Owest, its affiliates and each of their officers, directors, employees and agents
from and against all suits, losses, costs (including without limitation reasonable court costs and
attorneys' fees), lawsuits, judgments, orders, awards, fines, penalties, expenses, liabilities, actions.
damages or claims of any character ("liabilities") arising from or in connection with (a) any
personal injuries or property damage received or sustained by any person or property arising in
whole or in part in connection with the Work; (b) any act or omission, neglect, negligence, gross
negligence or willful misconduct of the City, the Contractor or any subcontractors in connection with
the Work or the Agreement; or (c) any breach by the City of the Agreement.
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11.2 Prior to the commencement of the Work, the City will require the Contractor to agree in writing to
indemnify, defend and hold harmless Owest, its affiliates and each of their officers, directors,
employees and agents from and against all Liabilities arising from or in connection with (a) any
personal injuries or property damage received or sustained by any person or property arising in
whole or in part in connection with the Work; and (b) any act or omission, neglect, negligence,
gross negligence or willful misconduct of the Contractor or any subcontractors in connection with
the Work.
11.3 Owest will indemnify, defend and hold harmless the City, its employees and agents from and
against all Liabilities arising from or in connection with (a) any act or omission, neglect, negligence,
gross negligence or willful misconduct of Owest in connection with the Agreement or (b) any breach
by Owest of the Agreement.
11.4 No party shall be required to indemnify, defend, or save harmless the other party if the claim, suit,
or action for injuries, death, or damages is caused by the sole negligence of the party seeking
indemnification.
11.5 Washington Provision: IF WORK IS PERFORMED UNDER THE AGREEMENT IN THE STATE ~
OF WASHINGTON THE CITY'S INDEMNIFICATION OBLIGATIONS SHALL INCLUDE, BUT NOT ~ J.
BE LIMITED TO, ALL CLAIMS AGAINST OWe:ST BY AN EMPLOYEE OR FORMER EMPLOYEE IV~ I
OF THE CITY OR THE CONTRACTOR OR ANY SUBCONTRACTOR, AND THE CITY
EXPRESSLY WAIVES ALL IMMUNITY AND LIMITATION OF LIABILITY UNDER ANY
INDUSTRIAL INSURANCE ACT, OTHER WORKERS' COMPENSATION ACT, DISABILITY
BENEFIT ACT, OR OTHER EMPLOYEE BENEFIT ACT OF ANY JURISDICTION WHICH WOULD
OTHERWISE BE APPLICABLE IN THE CASE OF SUCH A CLAIM.
11.6 Arizona, Idaho, South Dakota, Utah, New Mexico or Washington Provision: FOR ANY WORK ~.'
PERFORMED UNDER THIS AGREEMENT IN THE STATES OF ARIZONA, IDAHO, SOUTH
DAKOTA, UTAH, NEW MEXICO OR WASHINGTON, THIS SECTION AND THE SECTION
BELOW TITLED "LIMITATION OF LIABILITY" WILL NOT APPLY WHEN OWEST IS SOLELY
NEGLIGENT BUT WILL APPLY TO THE NEGLIGENCE OF OWEST WHEN CONCURRENT
WITH THAT OF THE CITY OR THE CONTRACTOR OR ANY SUBCONTRACTOR.
11.7 Minnesota, Nebraska, New Mexico, or Oregon Provision: FOR ANY WORK PERFORMED UNDER
THE AGREEMENT IN THE STATES OF' MINNESOTA, NEBRASKA, NEW MEXICO OR
OREGON, THIS SECTION AND THE SECTION BELOW TITLED "LIMITATION OF LIABILITY"
SHALL NOT APPLY EXCEPT IN THE STATE OF MINNESOTA WITH RESPECT TO
MAINTENANCE OR REPAIR OF MACHINERY, EOUIPMENT OR OTHER SUCH DEVICE, USED
AS PART OF A MANUFACTURING, COVERING OR OTHER PRODUCTION PROCESS
INCLUDING ELECTRIC, GAS, STEAM AND TELEPHONE UTILITY EOUIPMENT USED FOR
PRODUCTION, TRANSMISSION OR DISTRIBUTION PURPOSES.
12. Limitation of Liability:
Except for each party's indemnification obligations under the previous section or breach of the section
entitled Confidential Information, neither party is liable to the other for consequential, incidental, indirect,
punitive or special damages, including commercial loss and lost profits, however caused" and regardless
of legal theory or foreseeability, directly or indirectly arising under this Agreement, even if such party has
been apprised of the possibility of the damages.
13. Records and Audits:
The City will maintain complete and accurate records with respect to the Work, invoicing and payment.
The records will, to the extent applicable, be kept in accordance with generally accepted accounting
principles and will be kept for a period of three (3) years after termination of the Agreement. Owest or its
designee may audit, copy and inspect the records and accounts at all reasonable times during this period.
14. Notices:
Notices required under the Agreement will be sent to the addresses of the parties stated in the signature
block of the Agreement as revised by the parties from time to time by written notice. Notice will be
rev. 1-05
6
deemed given (i) on the first day after deposit with an overnight courier, charges prepaid (ii) as of the day
of receipt, if sent via first class U,S. Mail, charges prepaid, return receipt requested and (Hi) as of the day
of receipt, if hand-delivered. In addition, other than notices relating to routine Project or Work
management (which shall be provided to Qwest at the address in the signature block), copies of all
notices sent to Owest will be sent to Owest Corporation, 1801 California Street Denver, CO 80202 Attn:
General Counsel.
15. Confidential Information:
"Confidential Information" means trade secrets, systems, data, and customer information provided,
disclosed or made accessible by Owest to the City or the contractor under this Agreement or in
connection with the work. The parties acknowledge that the City is a public entity subject to the
Washington State Public Disclosure Act (RCW 42,17 et seq,). Subject to applicable law, the City will: (a)
not use Confidential Information for any purpose other than the fulfillment of its obligations under the
Agreement; (b) not disclose Confidential Information to any third party (including any affiliate of itself or of
Owest) without prior written consent of Owest; (c) not make any copies of Confidential Information without
Owest's prior written consent; and (d) protect and treat all Confidentia' Information with the same degree
of care as it uses to protect its own confidential information of like importance. In the event the City or the
contractor is required to disclose Confidential Information pursuant to law, the City will notify Owest of the
required disclosure with sufficient time for Owest to seek relief, will cooperate with Owest in taking
appropriate protective measures, and will make such disclosure in a fashion that maximizes protection of
the Confidential I nformation. Subject to applicable law, at the conclusion of the Agreement, or any time at
the specific request of Owest, any and all Confidential Information will be returned to Owest.
16. No Waiver of Rights:
The City and Owest agree that by entering into this Agreement neither party waives any rights it may have
under law with respect to future projects. Each party expressly reserves any such rights. Owest's
participation in the Project pursuant to this Agreement shall not be construed as agreement to participate
in any future projects.
17. Miscellaneous:
17.1 This Agreement, including all exhibits, contains the entire agreement between the parties and
supersedes all prior oral or written agreements with respect to the subject matter hereof, This
Agreement may not be amended or modified except by a written instrument executed by both
parties.
17.2 This Agreement does not create a partnership, joint venture or similar relationship between the
parties, and neither party will have the power to obligate the other in any manner whatsoever. The
City and the Contractor are independent contractors and not agents or employees of Owest. The
City and the Contractor are solely responsible for providing workers' compensation, unemployment,
disability insurance and social security withholding for their employees and agents, and will comply
with all other federal, state and local, rules and regulations.
17.3 Neither party may assign this Agreement without the prior written consent of the other party, which
consent will not be unreasonably withheld, except that either party may assign the Agreement
without the consent of the other party (i) in connection with the sale of all or substantially all of its
assets; (ii) to the surviving entity in any merger or consolidation; (iii) to an entity that it controls, is
controlled by, or is commonly controlled by that party; or (iv) to satisfy a regulatory requirement
imposed by a governmental body with appropriate authority.
17.4 Neither party is liable to the other party for any delay, error, failure in performance or interruption of
performance resulting from causes beyond its control. The injured party may elect to terminate this
Agreement upon written notice.
17.5 This Agreement shall be governed by aod interpreted in accordance with the substantive laws of the
state in which the Work will be performed, without reference to its conflicts of laws principles.
17.6 The terms, covenants and conditions contained in this Agreement shall be binding on and inure to
the benefit of the parties and their respective successors and assigns.
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17.7 This Agreement may be executed in one or more counterparts, each of which shall be deemed an
original and all of which together shall constitute one agreement.
17.8 Each party represents and warrants that it has the authority to execute, deliver and perform under
this Agreement.
17.9 Neither party will use the other party's name, mark, code, drawing or specification in any
advertising, press release, promotional effort or publicity of any kind without the prior written
permission of the other party.
17.10 Any waiver by either party of a breach of any provision of the Agreement will not operate as or be
construed to be a waiver of any other breach of that or any other provision of the Agreement. Any
waiver must be in writing. Failure by either party to insist upon strict adherence to any provision of
the Agreement on one or more occasions will not deprive such party of the right to insist upon strict
adherence to that or any other provision of the Agreement.
17.11 Any modifications or amendments to this Agreement must be in writing and signed by both parties.
17.12 The determination that any provision of this Agreement is invalid, illegal, or unenforceable will not
invalidate this Agreement, and this Agreement will be construed and performed in all respects as if
such invalid or unenforceable provision was omitted insofar as the primary purpose of this
Agreement is not frustrated.
17.13 Headings in this Agreement are included for convenience only and will not affect the meaning or
interpretation of this Agreement.
Qwest:
w
zed Signature)
f\A:AiOK
(Print or Type ame of SIgnatory)
, r:J ---:> \_
PrcsIdellt -T-~ R "t~- L.F- '\t,J1 ~
(Title)
07- 10 --D5
(Execution Date)
--- ......
,
(Authorized Signature)
Mark D, Schmidt
(Print or Type Name of Signatory)
Director Process Management
(Title)
Ol-{)6-\)S
(Execution Date)
,1,
,/'
Address for Purposes of Notices:
Jeff Watson
23315 66th Ave. So.
Kent W A, 98032
253-372-5358, jeff.watson@qwest.com
Address for Purposes of Notices:
Jennifer Dvorak
City of Auburn, 25 West Main Street
Auburn, WA 98001
253-804-5069, jdvorak@auburnwa.gov
rev. 1-05
8
"_..~,_._~---_. ._.,--------"--------~.,--~"-"
EXHIBIT A
THE PROJECT
The City of Auburn will make right of way/road improvements to the intersection of "A" St. SE and Cross St
(3rd St. SE). within the City of Auburn. Owest's existing aerial facilities on the south side of 3rd St. SE from
the southwest corner of 3i'd St. SE and "A" St. SE approximately 150 feet west of "A St. SE to an existing
Owest handhole and Owest's existing aerial facilities on the west side of "A" St. SE from the southwest
corner of 3rd St. SE and "A" St. SE approximately 354 feet south on "A" St. SE will require relocation from
aerial to underground environment.
rev. 1-05
-_...~~------~----"--------_._-,------
EXHIBIT B
THE WORK AND THE WORK SCHEDULE
Owest shall prepare and provide 22" x 34" engineering drawings, specifications, construction standards and
quantities pursuant to Owest specifications. Such deliverables will be provided within thirty (30) calendar days
from the Effective Date of the Agreement.
Owest will provide approximately 550 feet of 4 inch PVC conduit, all conduit bends, sweeps and accessories
and one Owest 12 inch x 12 inch above ground pedestal. The City of Auburn or it's contractor will perform all
trench, backfill, and restoration and place Owest-provided materials in the City-performed trench at no cost to
Owest. Conduit shall be placed in accordance with City of Auburn permit specifications. All conduit shall be
proven as good by passing a Owest approved mandrel through the conduit. Owest shall provide the City or it's
contractor with polyethylene measuring tape (mule tape) to be placed in the conduit by the City or it's
contractor during the conduit proofing work operation. The end of conduit to end of conduit measurements
noted on the mule tape will be provided to Owest by the City or it's contractor. Upon completion of placement
of Qwest facilities in the City's trench and acceptance of the facilities by Owest (conduits proofed and conduit
measurements provided to Owest), Owest shall pull all cable and wire in conduit and complete all splicing and
cutover of service to the new system and remove all existing aerial facilities within 30 calendar days of Owest
acceptance of City-installed conduit and vaults.
rev. 1-05
EXHIBIT C
THE PAYMENT AND THE PAYMENT SCHEDULE
The City of Auburn shall provide all trench, backfill, restoration and place Owest-provided materials in the
City-provided trench at no cost to Owest.
rev. 1-05