HomeMy WebLinkAboutITEM VIII-A-1
*
CITY OF- * *
' AGENDA BILL APPROVAL FORM
WASH[NGTON
Agenda Subject: Date:
Qrdinance No. 6325 Au ust 17, 2010
Department: Attachments: Budget Impact:
Pubiic Works Ordinance No 6325, Exhibit A, $0
Ordinance No. 5952
' Adminlstrative Recommendation:
City Council to introduce and adopt Ordinance _No. 6325.
Background Summary:
360 Networks (USA) Inc. has applied for renewal ofitheir current Public Way Agreement No. 05-52 which
was authonzed by Ordinance No. 5952 (please see attached document) and is set to expire on Octo6er
3, 2010. This agreement is for existing fiberoptic conduit in the right of way along West Valley Nighway
betweea the north and south city limifs. This fiber optic conduit does not service any customers inside the
city limits.
Per the terms of the current agreement 360 Networks (USA) Inc. may apply for up to four (4) additional
five year term renewals with this renewal being the first of four.
The current Public Way Agreement was reViewed by city staff and the applicant and it was determined
that the agreement still meets the needs of tfie City and the applicant with onty minor amendments to the
agreement to reflect current Grantee contact information and remaining renewal terms.
Ordinance No.6325 amends the current agreement to reflect these changes and authorizes 360 Networks
(USA),Inc's fiber optic conduit to rernain in the right of way for an additional five year term per the
conditions set forth in PWA 05-52 upon filing with the City Clerk a Stafement of Acceptance which is
marked "Exhibit A"
W1004-4
03.10.9
Reviewed by Council & Committees:. Reviewed tiy Deparfinents & Divisions:
❑ Arts C.ommission GOIJNCIL COMMITTEES: ❑ Building ❑ M&O
❑ Airport 0 Finanoe ❑ Cemetery ❑ Mayor
❑ Hearing Examiner p Municipal Serv. ❑ Finance ❑ Parks
❑ Human Services 0 Planning & CD ❑ Fire ❑ Planning
p Park Boartl SPublic Works Z Legal ❑ Police
❑ Planning Comm. ❑ Other Z Public Works ❑ Human Resources
Action:
Committee Approval: ❑Yes ❑No Council Approval:' ❑Yes ❑No Catl for Public Hearing
Referred to Until
Tabled Until
Councilmember: Wa ner Staff: Dowd
Meetin- Date: October 4, 2010 Item Numbee VIII.A.1 AUBURN *MORE THAN YOU IMAGINED
ORDINAIVCE NO: 6325
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF AUBURN,
WASHINGTON, RELATING. TO A PUBLIC WAY AGREEMENT WITH
360NETWORKS (USA) INC.; AUTHORIZING THE RENEWAL OF PWA -
05-52 AND AMENDING THE TERMS OF THE AGREEMENT
WHEREAS, Grantee has applied to the City for renewal of PWA 05-52, which
was authofized by Ordinance No. 5952; and ~
WHERE=AS, the City has reviewed the Grantee's renewal application and
determined that renewal of the Public Way Agreement authorized by Ordinance No.
5952 with minor amendments is in the best interest of the City and the citizens of
Auburn, ,
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF AUBURN,
WASHINGTON, DO ORDAIN as follows:
Section 1. The City appcoves Grantee's application for renewal with tFie
amendments and under the conditions set forth in this ordinance.
Section 2. Section 1, "No#ice" of Ocdinance No. 5952 is amended to read
as follows;
Grantee: B Mitchell Merrvman
Attn: Director of Right-of-Way
360nefinrorks (USA) inc.
, Ste. 160
370 Interlocken Blvd., Suite 600
. Leu*sville, Broomfield, CO 80021 ,
.
n*she14Mitchell.~e#yAiqgMerryman0_360.net
www.360networks.com
p#-393-854-F412-2303-854-5271 (o)
303-854-5411 (fl
Section 3. Section3, "Terms of Agreement" of Ordinance No. 5952 is
amended to read as follows
A. This Public Way Agreemenf shall run for a period of five (5) years,
from the date of execution specified in Section 5.
6. Renewal Option `of Term: The Grantee may renew this Public Way
Ordinance No. 6325
July 29, 2010
Amendatory Renewal PWA 10-10 .
Page 1 of 3
Agreement for up to #eur--E44three 3 additionaf five .(5) year periods upon
submission and approval of the application specfied under ACC 20.04.120, as it
now exists or is amended, within the timefrarime set forth therein (currently 180 to
120 days prior to expiration of the then-current term). Any materials submitted by
the Grantee for a previous application may be considered bythe City in reviewing
a curcent application, and the Grantee shall only submit those materials deemed
necessary by the City to address changes in the Gran#ee Facilities or Grantee
SerVices, or to reflect specific reporting periods mandated by the ACC.
$ection 4. Acceptarace of Amendments A. This Amendment and any rights granted hereunder shall not
become effective for any purpose unless and until Grantee files with the City
Clerk the Statement of Acceptance, attached hereto as Exhibit "A", and
incorporated by reference.. The date that such Statement of Acceptance is filed
with the City Clerk shalf be the effective date of the renewal, which the City has
assigned "PWA 10-10".
B. Should the Grantee fail to file the Sfatement of Acceptance with the
, City Clerk within 30 days after the effective Date of the ordinance approving the
Amendatory Renewal, said renewal and corresponding agreement will
automatically terminafe and shall be null and void.
Section 5: Implementation The Mayor is hereby, authorized to implement
such administrative procedures as may be necessary to carry out the directions of this
legislation.
Section 6. Severability The provisions of th'is ordinance are declared
to be separate and "severable, The 'invalidity of any clause, sentence, paragraph,
subdivision, . section or portion of this ordinance, or the invalidity of the application
thereof to any person or circumstahce shall not affect the validity, of the remainder of
this ordinance, or the validity of its application to other persons or circumstances.
Section 7. Effecfive date This Ordinance shall take effect and be in force
five days from and after its passage, approval and publication as required by law.
~
Ordinance No. 6325
July 29; 2010 '
Amendatory Renewal PWA 10-10
Page 2 of 3
INTRODUCEDt
PASSED:
APPROVED:
Peter B. Lewis
MAYOR ^
ATTEST:
Danielle E. Daskam,
Cify Clerk ,
APPROVED AS TO FORM:
Danie . Hei ,
City Attorney
Published:
Ordinance No. 6325
July 29, 2010
Amendatory Renewal PWA 10-10
Page 3 of 3
EXHIBIT "A"
% STATEMENT OF ACCEPTANCE
360Networks (USA) Inc., for itself, its successors and assigns, hereby accepts and
agrees to be bound by all terms, conditions and provisions of the Public Way ~
Agreement attached hereto and incorporated herein by this reference.
[Grantee]
By: - - - - Date:
Name: _ _
Title:.
STATE OF )
)SS• COUNTY OF ) On this. day of , 2010, before me the undersigned;. a Notary
Public in and for the State of , duly commissioned and sworn,.
personally appeared, of , the
company thaf executed the within and foregoing instrument, and acknowledged the said
- instrument to be. the free and voluntary act and deed of said company, for the uses and
purposes therein mentioned, and on oath' stated that he/she is authorized. to execute
said instrument.
IN WITNESS WHEREOF, I have Fiereunto set my hand and affixed my official seaf on
the date hereinabove set forth.
Signature '
NOTARY PUBLIC in and for the State of
, residing at
MY COMMISSION EXPIRES: 4
Ordinance No. 6325
August 17, 2010
Amendatory Renewal PWA 10-10
Page 1 of 1
ORDINANCE NO. 5 9 5 2
AN QRDINANCE OF THE CITY COUNCIL OF THE CITY
OF AUBURN, WASHINGTON, APPROVING A PUBLiC
WAY AGREEMENT WITH 360NETWORKS
This Public Way Agreement is entered iMo by and between the City of
Aubum, Washington, a municipal corporation ("City") and 360networks (USA) inc., a
Nevada oorporation (°Grantee°). WHEREAS, Grantee has applied to the City for a non-exclusive Public Way
Agreernent for the right of entry; use, and occupation of certain public right(syof:way
within the City of Aubum, expressly to install, construct, erect, operate, maintain,
repair, and remove its facilities in, on,. upon, along andlor across those right(s)-of-
way; and
WWEREAS, the City has reviewed the Grantee's application and deteRnined
,that the location of Grantee's facilities within the requested right(s)-of-way is in the
best interest of the City and the citizens of Aubum,
, NOW, THEREFORE, THE ClTY COUNCIL OF THE CITY OF AUBURN,
WASHINGTON, DO ORDAIN as follows:
In consideration of the mutual benefits and oonditions set forth below,
including acceptance and agreement of the Public Way Agreement by the Grantee in
the foRn substantially as sef forth in Exhibit °C" hereto, the City of Aubum agrees and
ratifies acceptance to the Public Way Agreement, as follows:
SectBon 1. Notice
A. Written notices to the parties shall be sent by certifed rnail to the
following addresses, unless a different address shall be designated in writing and
delivered to the other party. City: Right-of-Way Manager
City of Aubum
25 West Main Street
Aubum, WA 98001-4998
Telephone: (253) 931-3010; Fax: (253) 931-3048
i with a copy to: City Clerlc
f " City of Aubum
; 25 West Main Street
Aubum, WA-98001-4998 .
Ordinance No. 5952
Version Date: 9120I2005 9:44 AM
PUBUC WAY AGREEMENT
Page1
Grantee: Bob Boyeson
Attn: Director of Right-of-Way
867 Coal Creek Circle, Ste. 180 Louisville, CO 80027
bob.boyesonQ360.net;
mitchell.meRym4n@360.net
ph. 303-854-5132
B. Any changes to the aboue-stated Grantee information shall, be sent to
the City's Right-of-Way Manager, with copies to the City Clerk, referencing the title of
this agreement.
C. The above-stated Grantee voice and fax telephone numbers shall be
staffed at least during normal business hours, Pacific time zone.
Section 2. Grant of Right to Use Public Way
A. Subject to the terms and conditions sta#ed herein, the City grants to the .
Grantee general permission to enter, use, and occupy the right(s)-of-way specifled in
Exhi6it "A," attached hereto and incorporated by reference (the "Public Way').
B. The Grantee is authorized to install, remove, construct, erect, operate,
maintain, relocate and repair the facilities specffied in Exhibit "B," attached hereto
and incorporated by reference, and all necessary appurtenances thereto, ("Grantee
Facilities") for provision of the services specified in.Exhibit "BQ ("Grantee Services°)
in, along, under and across the Public Way, for the sole purpose of providing
commercia! and wholesale utility or telecommunications services to persons or areas
outside the City.
C. This Public Way Agreement does not authorize the use af the Public
Way for any facilities or services other than Grantee Facilities and Granfee Services,
and if extends no rights or privilege relative to any facilities or services of any type,
including Grantee Facilities and Granfee Services, elsewhere within the City. The
foregoing shall not affect Grantee's right to grant an indefeasible right of use, lease
or other instrument transferring an interest in -excess capac'ity in the Grantee
Facilities fo third parties; provided, such instrument shall exdude,said third parties
from any right to operate, occupy, physically access, or in any other way exert control
over any portion of the Grantee Facirdies.
. D. This Public Way Agreement is nan-exclusive and does not prohibit_the
City from entering into other agreements, including Public Way Agreements,
impacting the Public Way, unless the City de#ermines that entering into such
agreements interferes with Grantee's right set forth herein. Ordinance No. 5952
Version Date: 5120l2005 9:44 AM
PUBLIC WAY AGREEMENT
Page2
E: Except as explicitly set forth herein. this Public Way Agreement does
not waive any righfs that the City has or may hereafter acquire with respect to the
Public Way or any other City roads, rights-of-way; property, or any portions thereof.
This Public Way Agreement shall be subject to the power of eminent domain, and in
any°.proceeding under eminent domain; the Grantee acknowledges its use of the
Public VNay shall have no value.
: The City reserves the right to change, regrade, relocate, abandon, or
vacate the Public Way. If, at any time during the term of this Public Way Agreement,
the City vacates any portion of the Public Way, the City shall resenre an easement
for public utilities within that vacated portion, pursuant to RCW 35.79.030, within
which the Grantee may continue to operats the Grantee Facilities under the terms of
this Pubic Way Agreement for the remaining period set forth under Section 3.
G. The Grantee agrees that its use of Public Way shall at all times be
subordinated to and subject to the City and the public's need for municipal
infrastructure, travel, and access to the Public Way, except as may be otherwise
. required by law.
H. Should the Grantee seek to use the Public Way to provide services,
including Grantee Services, to City residents, the Grantee shall apply for, obtain, and
comply with the terms of a City franchise agreement for such use.
Section 3. Term of Agreement
A. This Public Way Agreement shall run for a period of five (5) years, from
the date of execution specified in Section 5.
B. Renewaf Option of Term: The Grantee may renew this Public Way
Agreement for up to four (4) additional five (5) year pertods upan submission and
approval of the application specffied under ACC 20.04.120, as it now exists or is _
amended, within the timeframe set fbrth therein {currently 180 to 120 days prior to expiration of the then-current term}.. Any materials submitted by #he Grantee for a
previous application may be considered by the City in reviewing a current application,
and the Grantee shall only submit those materials deemed necessary by the City to
address changes in the Grantee Facilities or Grantee Services, or to reflect specific
reporting periods mandated by the ACC.
Section 4. DefinitBons
For the purpose of this agreement:
"ACC" means the Aubum City Code.
Ordinance No. 5952
Version Date: 912012005 9:44 AM PUBLIC WAY AGREEMENT
Page3
"Emergency" means a condition of imminent danger to the health, safety and welfare
of persons or property located within the City including, without timitation, damage to
persons or property from natural,oonsequences. such as storms, earthquakes, riots,
acts of terrorism or wars.
°Excess capacity° means the volume or capacity in, any existing or future duct,
conduit, manhole, handhole or other utility facility within the public way that is or wilf
be available for use for additional telecammunications-facilities.
"Maintenance ar Maintain° shall mean examining, testing, inspecting, repairing,
mainfaining and replacing the existing Grantee Faalities or any parf thereaf as
required and necessary for safe operation.
"Relocafion° means permanent movement of Gcantee facilities required by the City,
and not temporary or incidental movemenf of such facilities, or other revisions
Grantee woufd accomplish and charge to third parties without regard to municipaf
request. "Rights-of-Way" rneans the surface and the space above and below streets,
roadways, highways, avenues, caurts, lanes, alleys, sidewalks, easements, rights-of-
ways and similar public properties and areas.
Section 5. Acceptance of Public Way Agreement
A. This Public Way Agreement, and any rights gcanted hereunder, shall
not become effective for any purpose unless and until Grantee fites with the City
Clerk (1) the Statemerrt of Acceptance, attached hereto as Exhibit "C,° and
incorporated by reference, (2) a11 verifications af insurance coverage specfied under
Section 15, and (3) the financial guarantees specfied. in Section 16 (collectively,
"Public Way Acceptance"). The date that such Public Vllay Acceptance is filed with
the City Clerk shafl be the effectNe date of this Public Way Agreement.
B. Should the Grantee fail to file #he Pubfic Way Acceptance.with the City
Clerk within 30 days after the effective date of the ordinance approving the Public
Way Agreement, said agreement will automatically terminate and shall be null and
void. .
Section 6. Construction and Maintenance
A. The Grantee stiall apply for, obtain, and comply with the terms of all
permits required under ACC Chapfer 12.24 for any work dane upon Grantee
Facilities. Grantee shall comply with all applicable City, State, and Federal codes,
rules, regulations, and orders in undertaking such work, which shall be done in a
thorough and proficient manner,
Ordlnance No. 5552
Version Date: 9120J2005 9:44 AM
PUBLIC WAl' AGREEMENT
Page4
- ;
B. Grantee agrees to caordinate its actnrities with the City and all other -
utilities tocated within the Public VVay.
C. The City expressly reserves the right to prescribe how and where
Grantee Facilities shall be installed within the Public Way and may fram time to time. ~pursuant to the applicable sectians of this Public, Way Agreement, require the
removal, relocation andlor replacement thereaf in the public interest and safety at the
expense of the Grantee, provided that, in the event such removal, relocation and/or
replacement is for the pn'mary purpose of accommodating a party other than the City,
such private party shall pay the expenses.
D. Before commencing any work within the Public Way, the Grantee shall
comply with the One Number Locator provisions of RCW Chapter 19.122 to identify
existing utility infrastructure.
Section 7. Repair and Emergency Work
in the evenf of an emergency, the Grantee may oommence such repair and
emergency response worlc as required under the circumstance.s, provided that ttie
Grantee shall notify the Cify Right-of-Way Manager in writing as promptly as
possibte, before such repair or emergency work commences, or as soon thereafter
as possible, if advance notice is not practical. The City may act, at any time, without
prior written notice in the case of emergency.
Section 8. Damages to City and Third-Party Property
Grantee agrees that should any of its actions uncier this Public Way
Agreement impairs or damages any City property, survey monurnent, or. property
owned by a thirc!-party, Grantes wilf restore, at its own cost and expense, said
, property to a safe condition. Such repair work shall be performed and compteted to
. the satisfaction of the City Engineer.
Section 9. Location Preference
A. Any structure, equipnient, appurtenance or tangible property of a
private utility, other than the Grantee's, which was installed, constructed, completed
or in place prior in time to Grantee's application for a permit to construct ar repair
Grantee Facilities under this Public Way Agreement shall have preference as to
positioning and locatian with respect to the Grantee Facilities. However, to the
extent that the Grantee Facilities are completed and installed prior to new or
additional sfructures, equipment, appurtenances or fangi6le property of an earlier
private utility, being installed or tompleted, then the Grantee Facilfies shall have
priority: These rules goveming preference shall continue in the event of the necessity
of relocafing or changing the grade af any such the City road or right-af-way. A
relacating utility shall not necessitate the relocation of another util'dy that otherwise
Ordinance No. 5952
Version Date: 9/20/2005 9:44 AM
PUBLIC WAY AGREEMENT
PageS _
woultl not require relocation. Tliis Section shall not appiy to any City facilities or
utilifies that may in the future require the relocation of Grantee Facilities. Such
relocativns shafl be governed by Sectian 11.
8. Grantee shall maintain a minimum underground horizontal separation
of five (5) feet from City water facilities and ten (10) feet from above-ground City
water facilities; provided, that for.development of new areas, the City, together with .
Grantee and other utility purveyors or authorized users of the Pubic Way, will
develop and . follow the Public Works Direc#or's detemnination of a consensus far
guidelines and procedures for - determining specific utility locations, subject
additionally to this agreemenf and #o a Franchise agreement, should one become
necessary. Nofinrithstanding the foregoing, .Grantee shall not be required to relocate
- Grantee Facilities pursuant to this Section that are in place prior to the Effective.Date
of this Agreement unless such Grantee Facilities present a risk fo public safety.
Section 10. Grantee Infonmation
~ A. Grantee agrees to supply, at no cost to the C9ty, such information as
the Director of Public Works, or R'ight-of-Way Manager, find necessary to coordinate
_ municipal functions with Grantee's activities and to fulfiU any municipaF obligations
under state faw. 3aid information sha{I include, at a minimum; quarferfy statements
due on tfie first day of January, April, July, and October of each year detailing any
changes in the ihfarmation submitted as part of Grantee's Public Way Agreement
application, as set forth in Exhibit "D,° attached hereto and incorporated by
. reference; as-built drawings of Grantee Facilities; instaUation inventory; and maps
and plans showing the locatian ofi existing or planned facilities within the City. Said,
information may be requested either in hard wpy andlor electronic format,
compatible wi4h the Gity's data base system, as now or hereinafter existing, including
Ahe City's geographic informatian Service (GIS) data base. Grantee shall keep the
Righf-of-Way Manager informed of its long-range plans for coordination with the
City's long-range plans.
B. The parties understand that Washington law limi#sthe ability of the City
to shield from pu6lic disclosure any information given to the City. Accordingly, the
, parties agres to work together to avoid disclosures-of information which would result
in economic loss or damage fo Grantee because of mandatory disclosure
requirements to third persons. In the event the parties. cannot agree, the dispute
shaA be submitted to the City Hearing Examiner, subjec:t to the record before the
'Hearings Examiner. Notwithsfanding this option, Grantee shall indemnify and hold
harrnless the City for any loss or liabitity for costs for attomeys fees because of non-
disclosures requesteci by Grantee under Washington's open public records law,
provided reasonable notice and vpportunity to defend was given to Grantee or
Grantee is made aware ofthe pending of a request or claim.
Ordinance No. 5952
Version Date: 912012005 9:44 AM
PUBUC WAY AGREEMENT
Page6
Section 11. Relocation, of Grantee Facilities
A. Except as otherwise so required by law, Grantee agrees to relocate,
remove, or reroute its faclities at no expense or liability to the. City, and at its sole
expense and Itability, except as may be required by Section 6, ch. 83, laws of 2000
of the State of Washington ar as further provided by Tifle 20 ACC. Pursuant to the
provisions of Secfion 14, Grantee agrees to protect and save harmless the City from
any customer or third-party claims for service interruption or other losses in
connection with any such change, relocation, abandonment, or vacation ofi the Pubic
Way.
B. In the event that the Public Way shall become a Primary State Highway
as provided by law, the State Department of Transportation may order the Grantee to
perform or undertake, at its sole exQense, changes to the location of Grantee
Facilities so that the same shall not intertere with such state highway and so that
such facilities shall conform to such new grades or rou#es as may be established.
C. If a readjustment or relocation of the Grantee Facilities is necessitated
by a request from a parly other than the City, that party shall pay the Grantee the
actual costs thereof. Section 12. Abandonment and or Removal of Grantee Facilities
A. Within one hundred and.eighty days (1$0) of expiration, revocation or
termination of this Public Way Agraement, or Grarrtee's permanent cessation of use
of the Grantee Facilities, ar any portion thereof, the Grantee shall, at the City's
discretion, either abandon in place or remove the affected facilfies.
B. The parties expressly agree that this Section shall survive the
expiration, revocation or terminatlon of this Public Way Agireement.
Section 13. Undergrounding
A. The parties agree that this Public Way Agreement does not limit the
City's authority under federal. law, state law, or the ACC, to require the
undergrounding of utilities.
B. Whenever the Cify requiras the undergrounding of aerial utilities in the
Public Way, the Grantee shali underground the Grantee Facilities in the manner
specified by the City Engineer, and where other ufilities are present and involved in
the undergrounding project,-Grantee shall only be required to pay its fair share of
common costs bome by all utilities, in addition to the costs specifically attributable to
the undergrounding of Grantee Facalities. Common costs shall include necessary
costs for common frenching and utility vaults. Fair share shall be defermined in
Ordinance No. 5952 ,
Version Date: 9/20/2005 5:44 AM
PUSLIC WAYAGREEMENT
Page7
comparison to the total number and size of all other ufility facilities being
undergrounded.
Section 14. Indemnification and Hold Haranless
A. The Grantee shall defend, indemnify, and hold the City and its officers, officials, agents, employees, and votunteers harmless from any and all costs, claims,
. injuries, damages, losses, suits, ar liabilities-of any nature induding attorneys' fees
arising out of or in connection with the Grantee's performance underthis Public Way '
Agreement, except to the extent such costs, claims, injuries, damages, losses, suits, or liabilities are caused by the negligence of the City.
B. The Grantee sha(I hold the City harmless from any liability arising out of
or in connectian with any damage: or . loss to the Grantee Facilities caused by
maintenance andlor construction work performed by, or on behalf of, the City within
the Public Way oc any other City road, right-of-way, or other property, except to the
extent any such damage or loss is directly caused by the negligence of the City, or its
agent perForming such work.
C. The Grantee acknowledges that neither the City nor any other public
agency with responsibility for fire fighfing, emergency rescue, public safety or similac ~
duties within the City has the capabifity to provide trench, close trench or confined
space rescue. The Grantee, and its agents, assigns, successors, ar contractors,
shall make such arrangements as Grantee deems fit for the provision of such
services. The Grantee shall hold the Gity harmless from any liability arising out of or
in connection with any damage or loss to the Grantee for the City's failure or inability .
to provide such services, and, pursuant to the terms of Section 14(A), the Grantee
shall indemnify the City againsf any and all third-party casts, claims, injuries,
damages, losses, suits, or liabilities based on #he Cit)(s failure or inability to provide
such services.
D. Acceptance by the City of any work performed by the Grantee shall not
be grounds for avoidance of this section.
Section 15. Insurance
A. The Grantee shall procure , and maintain for the duration af the
Agreement, insurance against clairns for injuries to persons or damage to property
which ma'y arise from or in connection with the pertormance of the work hereunder
by the Consultant, its agents, representatives, or emplayees in the amounts and
types set forth befow:
1. Automobile Liability insurance, covering all owned, non-owned,
hired, and leased vehicles wifh a m.inimum combined single limit for bodily injury and
property damage of $1,000,000 per accident Coverage shall be written on
Ordinance No. 5952
Version Date: 9/20/2005 9:44 AM
PUSUC WAY AGREEMENT
Page8
Insurance Services Office (ISO) form CA 00 01 or a substitute form providing
, equivalent liability coverage. If necessary, the policy shall be endorsed to provide
. contractual liability coverage.
2. Commercial General Liabitity- insurance with limits no less than
$1,000,000 each occurrence, $2;000,000 general aggregate and a$2,000,000 -
ptoducts-completed operations aggregate limit. CoVerage shafl be written on ISO
occurrence form CG 00 01 and shall cover liability arising from premises, operations,
independent contractors, products-completed operations, stop gap ;liability, and
persanal injury and advertising injury and liablity assumed under an fnsured contract.
The Commercial General Liability insurance shall be endorsed to provide the
Aggregate Per Project Endarsement ISO form CG 25 03 11 85. There shall be no
endorsement or modffication of the Commercial General Liability insurance for
liabitity arising from expiosion, collapse, or underground property damage. The City
shall be named as an additional insured under the Grantee's Commeraal General
Liability insurance policy with respect to the wark performed under this Public Way
Agreement using ISO Additional Insured Endorsement CG 20 10 10 01 and
Additional Insured-Completed Operations endorsement CG 20 37 10 01 or substitute
endorsements providing equ'ivatent coverage.
3. Professional Liability insurance with limits no less than
$1,000,000 per claim for all professional employed or retained Grantee to perForm .
services under this Public Way Agreement
4. Workers' Compensation coverage as required by the Industrial
Insurance laws of the State of WUashington.
B. The insurance policies are to contain, or be endorsed to contain, the
following provisions for Automobile Liability, Professional Liability, and Commercial
General Liability insurance:
1. The Grantee's insurance coverage shall be primary insurance
asrespects the City. Any insurance, self-insurance, or insurance pool coverage
maintained by the City shall be in excess of the Grantee's insurance and shall not
contribute with it.
_ 2. The Grantee's insurance shal) be endorsed to state that
coverage shall not be cancelled by either party exoept after thirty (30) days' prior
written notice by certified mail, retum receipt reGuested, has been given to the City.
C. Acceptability of Insurers. Insurance is to be placed with irtsurers with a
current A.M. Best rating of not less than A:VII.
D. Verfication of Coverage. Grantee shall fumish the City with
documentation of insurer's A.M. Best rating and with-originaf certificates and a copy
of amendatory endorsements, including but not necessarily limited to the additional
OrcJinance No. 5952
Version Date: 9120/2005 9:44 AM
PUBLIC WAY AGREEMENT
Page9
insured endorsement, evldencing the insurance requirements of the Consuitant
before commencement of the work.
E. Grantee shall have the right to self-insure any or all of the above-
required insurance. Any such self insurance is subject to approval by the City. .
Section 16. Performance Security
Pursuant to ACG Chapter 20.10, the Grantee shall provide the City with a
performance bond or other financial guarantee specffled in ACC Section 20.10.250,
in a form and substance acceptable to the City, securing the Grantee's faithful
compiiance with the tecros of this Public Way Agreemenf. Such guarantees shall be
in the amount of ten percent (iQ%) of the City Engineer's esfimate of Grantee's
' proposed expenditure on the Grantee Facilities, and shall in no event exceed
$50,Q00.
Section 17. Successors and Assignees
A. All the provisions, conditions, regulations and requirements herein
confained shall be binding upon the successors, assigns of, anci independent
contractors of the Grantee, and all rights and privileges, as well as all obligations and
liabilities'of the Granfee shail inure to its successars, assignees and contradors
equally. as if they were specifically mentioned herein wherever the Grantee is
mentianed. B. This public way agreement shall not be leased, assigned or otherwise
alienated without the express consent of the City by ordinance, which approval shall
not'be unreasonably withheld.
C. Grantee and any pmposed assignee or transferee shall provide and
certify the following to the City `not less than 90 days prior to the proposed date of,
transfer. (a) Complete informatian setting forth the nature, term and conditions of the
proposed assignment or transfer, (b) All information required by the City of, an
applicant for a Public Way Agreement with respect to the proposed assignee or
, transferee; and, (c) An application, fee which shall be set by the City, plus any other
costs actually and reasonably incurred by the City in processing, and investigating
the proposed assignment or transfer.
D. The foregoing shall not affect Grantee's right to grant an indefeasible '
- right of use, lease or other instrument transferring an interest in excess capacity in
the Grantee Facilities to third parties; provided, such instrument shall exclude said
third parties from any right to operate, occupy, physicaAy access, or in any other way
exert control over any portion of the Grantee Facilities.
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Sectlon 18. Dispute Resolution
A. . In the event of a dispute 6etween the City and the Grantee arising by
reason of this Agreement, the dispute shall first be referred to the operational officers
or representatives designated by Grantor and Gcantee to have oversight over the
administration of this AgreemeM. Ths officers or representatives shall meet within
thirty (30) calendar days of either party's request for a meeting, whichever request is
ftrst, and the parties shall make a good faith effort to achieve a resolufion of the
dispute.
B. If the parties fail tb achieve a resolution of the dispute in this manner,
either party may then pursue any available judicial remedies: . This Public Way
Agreement shall be govemed by and canstrued in accardance with the laws of the
State of Washington. In the evenf any suit, arbitrafion, or ather proceed'ing is
instituted to enfotce any term of this Agreement, the parties speafically understand
and agree that venue shall be exclusively in King County, Washington. The
prevailing party in any such action shall 6e entitled to its attomeys' fees and costs of
suit, which shall be fixed by the judge hearing the case, and such fees shall be
included in the judgment.
Section 19. Enforcement and Remedies
A. Jf the Grantee shall willfully violate, or fail to oomply with any of the
provisions of this Pubfic Way Agreement through willful or , unreasonable
negligence, or should it fail to heed or comply with any notice given to Grantee
under. the provisions of this agreement, the City may, at its discretion, provide
Grantee with written notice to cure the breach within thirty (30) days of notification.
If the City determines the breach cannot be cured wi#hin thirty days, the City may
specify a longer cure period, and candition the extension of time on Grantee's
submitfal. of a plan to cure the breach wifhin the specified period, oommencement,
of work within the original thi_rty day cure period, and diligeM prosecution of the
work to completion, lf the breach is not cured within the specified time, or the
Grantee does nof comply with the specified conditions, the Grantee, and its
' successors ot assignees, shall forFeit all rights conferred hereunder, and the Public
Way Agreement may be revoked or annulled by the City with no further notification:
B. . Should the City deterrinine that Grantee is acting beyond. the scape of
permission granted herein for Grantee Facilities anci Graintee Senrices, the City reserves the right to cancel this Public Way Agreement and require the Grantee to
apply for, obtain, and comply with all applicable City permits, franchises, or other City
permissions for such actions, and"if the Grantee's actions are not allowed under the .
Aubum City Code, to compel Grantee to cease such acfians.
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PUBLIC WAY AGREEMENT
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Section 20. Compliance with Laws and Regulations
A. This Public Way Agreement is subject to, and the Grantee.shall comply
with all applicable federal, state, or City laws, regulations and poliaes (including all applicable elements of the City's comprehensive plan) affecting perFormance under
this Public Way Agreement. Furthermore, notwithstand'mg any other terms af this
agreement appearing to the contrary, the Grantee shall be subject to the police
power of the City fo adapt and enforce general ordinances necessary to protect the
- saf,ety and welfare of the generai public in relation to the rights granted in the Pubfic
Way. B. The City reserves the right . at any time, upon a forty-eight (48) hour
written notice to the Grantee, to negotiate in good faith with Grantee to am.e.nd this
Public V1Iay Agreement to conform to any hereafter enacted, amended, or adopted
federal or state statute or regulation relating to the pubEic health, safety, and.welfare,
or relating to roadway regulation, or, a Cityr;Ordinance enacted pursuant to such
federaf or state statute `or regulation. The City may termina#e this Public Way Agreement upon thirty (30) days written notice to the Grantee, if the Grantee fails to
comply with such amendment or modification.
Section 21. License, Tax and Other Charges
This Public Way Agreement shall not exempt the Grantee from any future
license, tax, or charge which the City may heretnafter.aciopt pursuant to authority
granted to it under state or federal law for revenue or as reimbursement for use.and
occupancy of pubiic ways.
Section 22. Consequential Damages Llmitation
Notwithstanding any other provision of this Agreement, in.no event'shall either party be liable for any special, incidental, indirect, punitive, reliance, consequential or similar damages.
Section 23. Severability
If any portion of this Pubiic Way Agreement is deemed invalid, the remainder
portions shall remain in effect.
Section 24. TitOes
The section titles used herein are :far reference only and should not be used
for the purpose af interpreting this Public Way Agreemenfi.
lll
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PUBLIC WAY AGREEMENT
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ADOPTED AND APPROVED this day of 2005.
CITY OF
f
Peter B. Lewis
Mayor
ATTEST:
a 'elle E. Daskam
City Clerk
AP - ED TO FO ' . .
Dan el . i
City Attomey ' -
5
Ordinance No. 5952 Version Date: 9t20/2005 9:44 AM
PUBUC WAY AGREEMENT
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