HomeMy WebLinkAboutITEM VIII-A-2
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ACEIVDA BILL APPROVAL FORNi
- WASH[NGTON
Agenda Subject: Date:
Ordinance Na 6326 Au ust 26, 2010
Depactment: Attachments: Budget Impact:
Public Works Ordinance No: 6326 , Exhibif A, $0
' Ordinance No. 5951
Administrative Recommendation:
Gity Council to introduce and adopt Ordinance No. 6326.
Backgrou:nd Summary:
AT&T Corporation has applied for renewal of their current Public Way Agreement No. 05-51 which was
authonz_ed by Ordinance No. 5951 (please see attached document) and is set to expire on October 3,
2010; This agreement is for existing fiber opfic conduit in the right of way along West Valley Highway
between the north and south city limits. This fiber optic conduit does not service any customers inside the
city limits. •
Per the terms of the cunent agreement AT&T Corporation may apply for up to four (4) additional five year
term renewals with this renewal being the first of four.
The current Public Way Agreement was reviewed by city staff and the applicant and it was determined
that the agreement still meets the needs of the Gity and the aPplicanf with only minoramendments to the
agreement to reflect current Grantee contact information, remaining renewal terms and minor language
usage regarding insurance.
Ordinance No.6326 amends the current agreement to reflect these changes and authorizesAT&T
Corporation's fiber optic conduit to remain in the right of way for an additional five year term per the
conditions set forth in PWA 05-51 upon filing with the City Clerk a Statement of Acceptance which is '
marked "Exhibit A"
W1004-5
03.10.9
Rediewed by Council & Committees: Reviewed by Departrnents & Divisions:
El Arts Commission COUNCIL COMMITTEES: ❑ Building ❑ M&O
❑ Airport ❑ Finance ❑ Cemetery O Mayor
❑ Hearing Examiner ❑ Municipal Secv. ❑ Finance, ❑ Parks
❑ Human Services 0 Planning & CD ❑ Fire ❑ Planning
❑ Park Board [OPublic Works ' 0 Legal ❑ Police
❑ Planning Comm. ❑ Other 0 Public Works ❑ Human Resources
Action:
Cortimittee ApproVal: ❑Yes ❑No
Counci(Approval: ❑Yes ❑No Catl for Public Hearing
Referred to Until
Tabled Until
Councilmember: Wa ner Staff: Dowd
Meetin Date: October 4, 2010 Item Number: VIII.A.2
AU$jjRN * MORE THAN YOU IMAGINED
ORDINANCE NO. 6326
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF AUBURN,
WASHINGTON, RELATING TO A PUBLIC WAY AGREEMENT WITH
AT&T; AUTNORIZING THE RENEWAL OF PWA 05-51 AND
AMENDING THE TERMS OF THE AGREEMENT.
WHEREAS, Grantee has applied to the City for renewal of PWA 05-51, which
was authorized by Ord,inance No. 5951; and
WHEREAS, the City has reviewed the Grantee's renewal application and
determined that renewal of the Public Way Agreement authorized by Ordinance No.
5951 with minor amendments is in the best interest of the City and the citiiens of .
Auburn, .
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF AUBURN,
WASHINGTON; DO ORDAIN as follows:
Section 1. The City approves Granfee's application for renewal with the
amendments,and under the conditions, set forth in this ordinance. .
Section 2. Section 1, "Notice" of Ordinance No. 5951 is amended to_ read
as follows;
Grantee: AT&T Corp.
Right-of-Way Engineering
3001 Cobb Parkway NW- Room 162
Atlanta, GA 30339
SidneyAnderson
Telephone: (7-70) 953 &524(678) 627-5318;
Fax {770) -953 5533f281) 6644532
pjweFna . sa2612na.att.com
Section 3. Section 3, "Terms of Agreement" of Ordinance, No. 5951 is
amended to read as follows;
A. This Public Way Agreement shall.run for a period of five (5) years,
from the date of execution specified in Section 5.
Ordinance No. 6326
August 26, 2010
Amendatory Renewal PWA 10-11
Page 1 of 5
B. Renewal Option of Term: The Grantee may renew this Public Way
Agreement for up to #euF-(4)three 3 additional five (5) year periods upon
submission and approval of the application specified under ACC 20.04.120, as it
now exists or is amended, within the timeframe set forth therein (currently 180 to
120 days prior to expiration of the then-current term). Any materials submitted by
the Grantee foc a previous application may be considered by the City in reviewing
a current application, and the Grantee shall onty 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. Section 15. "Insurance" of Ordinance No. 5951 is amended to
read as follows;
A. The Grantee shall procure and maintain for the duration of the
Agreement, insurance agai.nst claims for injuries to persons or damage to
property which may arise from or in connection with the performance of the work
hereunder by the GensultantGrantee, its agents, representatives, or employees
. in the amounts and types set forth below:
' 1. Automobile. Liability insurance covering all owned, non- _
owned, hired, and leased vehicles with a minimum combined single limit for
bodily injury and property damage of $1,000,000 per accident. Coverage shall be
written on 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 Liability insurance with limits no less
than $1;000,000 each occurrence, $2,000,000 general aggregate and a
$2,000,000 products-completed operations aggregate limit. Coverage shall be
written on ISO occurrence form CG 0001 and shall cover liability arising from
premises, operations, ' ; products-completed operations,
, and personal injury and advertising injury
stop . The Commercial General Liability insurance shall be
endorsed to provide the Aggregate Per Project Endorsement ISO form CG 25 03
11 85. There shall be no endorsement or modification of the Commercial General
Liability insurance for liabilify arising from explosion, collapse, or underground
property damage. The. City shall be naFned-included as an additional insured
under the Grantee's Commercial General Liability insurance policy with respect
to the work performed under this Public Way Agreement using ISO Additional
Insured Endorsement CG 20 10 10 01 and Additional Insured-Completed
Ordinance No. 6326
August 26, 2010
Amendatory Renewal PWA 10-11
. Page 2 of 5
Operations endorsement CG 20 37 10 01 or substitute endorsements providing ,
equivalent coverage.
3. Professional Liability insurance with limits no less than
,$1,000,000 per claim for all professionals employed ^F F°,~~ Grantee to
perform services under this Public Way Agreement. -
, 4. Workers` Compensation coverage as required by the
Industrial Insurance laws of the State of-Washington.
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 as respects the City. Any insurance, self-insurance, or insurance pool
coverage maintained by the City shall be in excess of the Grantee's insutance
and shalf not contribute with it
2. The Grantee's insurance shall b° e;d^r~°a s+.,to t
' seveFa^°not be cancelled "y °i*"°F ^°d"xcept after thirty (30) days' prior `
written notice by G°~ifi°d m64, re4Urn rcnein+ reniies4ed, has been given fo the
City:
C. Acceptability of Insurers. Insurance is to be placed with insurers
with a current A.M. Best rating of not less than A:VII.
D. Verification of Coverage. Grantee shall; furnish the City with
documentation of insurer's A.M. Best rating and with original certificates and a
copy of amendatory endorsements, including but not necessarily limited to the
additional insured endorsement, evidencing the insurance requirements of the
Geas~aa~-Grantee 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 subjecf to approval by the City.
Section S. Acceptance 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 Aeceptance, attached hereto as Exhibit "A", and
- incorporated by reference. The date that such :Stafement of Acceptance is filed
Ordinance No. 6326
August 26, 2010
" Amendatory Renewal PWA 10-11 ,
Page 3 of 5
with the City Clerk shall be the effective date ofi the renewal, which the City has
assigned "PWA 10-11
B. Should the Grantee fail to file the Statement of Acceptance with the
City Clerk within 30 days affer the effective Date of the ordinance approving the
Amendato .ry Renewal, said renewal and corresponding agreement will
automatically terminate and shall be null and void.
Section 6. Implementation The Mayor is hereby authorized to implement '
such administrative procedures as may be necessary to carry out the directions of this
legislation. Section 7. Severability The provisions of this 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 circumstance shall not affect #he validity of the remainder of
this ordinance, or the validity of its application to other persons or circumstances.
Section 8. Effective date This Ordinance shall take effect and be in force
five days from and after its passage, approval and publication as required by law.
. INTRODUCED:
PASSED:
APPROVED:
Peter B. Lewis
MAYOR
ATTEST:
Danielle E..Daskam,
City Clerk
Ordinance No. 6326
August 26, 2010
Amendatory Renewal PWA 10-11
Page 4 of 5
APPROVED AS TO FORM: '
Dan . ei ,
City Attorney
Published:
Ordinance No. 6326
August 26, 2010
Amendatory Renewal PWA 10-11
Page 5 of 5
EXHIBIT "A"
STATEMENT OF ACCEPTANCE
AT&T Corporation, for itself, ifs 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: Dafe:
Name:
Title:
STATE OF )
)ss.
COUNTY OF )
On this day of , 2010, before me the undersigned, a Notary
Public in and forthe State of , duly commissioned and sworn,
personally appeared, of , the
company that executed the within and foregoing instrument, and acknowledged the said
insfrument to 6e 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 hereunto set my hand and aifixed my official seal on
the date hereinabove set forth.
Signature
NOTARY PUBLIC in and for the State of ,
, residing af
MY COMMISSION EXPIRES:
Ordinance No. 6326
August 26, 2010
Amendatory Renewal PWA 10-11
Page 1 of 1
~ORDINANCE N0. 5 9 51.
AN ORDINANCE OF THE CITY COUNCtL OF THE CITY
OF AUBURN,-WASHINGTON, APPROVING A PUBLIC
WAY AGREEMENT WITH AT&T CORP
This Public Way Agreement is en#ered info by and between the City of
Aubum, Washington, a municipal corporation ("Cityu) and AT&T Corp., a New York
carporafion ("Grantee").
WHEREAS,Grantee has applied to the City for a non-exdusive Public`Way
Agreement for the right of entry, use, and occupation of certain public right(s}of-way
' within the City of Aubum, expressly to install, construct, erect, operate, maintain,
_ repair, relocate and remove its facilities in, on, upon, along and/ar across those
right(s)-of-way; and
,
WHEREAS, the City has reviewed the Grantee's application and determined
'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 CITY COUNC{L OF THE CITY OF AUBURN,
WASHINGTON, DO ORDAIN as fopows:
In consideration of the mutual benefits and oonditions set forth below,
including acceptance and agreernent of the Public Way Agreement by the Grantee in
the form substantially as set #orth in Exhibit "C" hereto, the City of Aubum agrees and
ratifies acceptance fo the Pubtic Way Agreement, as follows:
Sect6on 1. Notice
A. Written notices to the parties shall be sent by certified mail to the
fallowing addresses, unless a different address shall be designated in writing and
delfvered 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
with a copy to: City Clerk
City of Aubum
25 West Main Street
Aubum, WA 98001-4998 _
Ordinance No. 5951
Version Date: 9/21/2005 10:12 AM
PUBUC WAY AGREEMENT
Page 1
Grantee: AT&T Corp. .
Rlght-0f-Way Engineering
3001 Cobb Parkway, NW - Room 162
. Atlanta, GA 30339
Telephane: (770) 953-6521; Fax: (770) 953-5533
pjwomack@att.com
with a oopy ta: AT&T Corp:
Attn: Chief ROW Counsel
One AT&T Way
Bedminster, NJ 07921-0752
B. Any changes to the above-stated Grantee information shall be sent to
the City's Right-af-Way Manager, with copies to the City Clerk, referencing the title of
this agreement - C. The atiove-stated Grantee voice and fax telephone numbers shall be
staffed at Jeast during normal business hours, Paafic time zone.
Section 2. Grant of Right to Use Public Way
~ A. Subject to the terms and conditions stated herein, the City grants to the
Grantee general permission to enfer, use; and occwpy the right(syof-way specified in
Exhibit "A,° attached hereto and incorporated by reference {the nPublic Way"}.
B. The Grantee is authorized to install, remove, construct, erect, operate,
maintain, relocafe and repair the facilities specified in Exhibit "B," attached hereto
and incorporated by reference, and all necessary appurtenances thereto, ("Grantee
Facilities") for provision of lawful communications, including, without limifation, long
distance voice,. and data communications and other lawful carnmunications as
disclosed to the City from time #o time ("Grantee Services") in, along, under and
across the Public Way, for the sole purpose of providing commercial utilify or telecommunications services to persons ar areas outside the City.
C. This Public Way Agreement does not authorize the use of the Public
Way for any facilities or services other than Grantee Facilifies and Grantee Services,
and if exfends no rights or privilege relative to any facitifies or seroices of any type,
including Grantee Facilities and Grantee Services, elsewhere within the City.
D. This Public Way Agreement is non-exGusive and does not prohibit the
City from entering into other agreements, including Public Way Agreements,
impacting the Public Way, unless the City determines that entering into such
agreements interferes with Grantee's right set forth herein.
Ordinance No. 6951
\/ersion Date: 9121/200510:12 AM
PUBLIC WAY AGREEMENT
Page 2
E. Except as explicitly set forth herein, this Public. Way Agreement does
not waive any rights 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 sha0 be subject to the power of eminent dornain, and in
any proceeding under eminent domain, the Grantee acknowledges its use of the
Public Way shall have no value. .
F. The City reserves the right #o change, regrade, relocate, abandan, oc
vacate the Public Way. If, at any time during the term of this Public WayAgreement,
the City yacates any portion of the Public Way, the City shall reserve an. easement
for pub{ic utilities within that vacated portion, pursuant to RCW 35.79.030...within
which the Grantee may continue to operate the Grantee Facilities under the terms ofi
this Public VNay Agreement for the remaining period sef forth under Section 3:
G. The Grarrtee agrees,that. its use of Public Way shaq at all times be
subordinated to and subject to the City and the public's need for municipal
infrastructure, fravel,. and access to the Pubtic Way, except as may be othervvise
required by taw.
H. Should the Grantee seek to use the Public Way to provide. services,
including Grantee Services, to City residents, the Gran#ee 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 Agceement shall nin for a period of fNe (5) years, fram
the date of execution specifed in Section 5.
.
B. Renewal Option of Term: The Grantee may renew this Public Way
Agteement for up to four (4) additional five (5) year periods upon submission and
approval of the application specifisd under ACC 20.04.120, as it now exists or is
amended, within the timeframe set forth therein (currently 180 to 120-days prior to
expiration ofi the then-current term). Any materials submitteci by the Grantee for a
previous application may be conside"red 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 $ervices, or to reflect speafic
reportirtg periods mandated by the ACC.
Section 4. Definitions
For the purpose of this agresment:
"ACC" means the Aubum City Code.
Ordinance. Na.-5951
Version Date: 91211200510:12 AM
PUBLIC WAY AGREEMENT
Page 3
"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,
acts of terrorism or wars.
"Mainfenance. or Maintain° shall mean examining, testing, inspecting, repairing,
mafntaining' and replacing the existing Grantee Facilities or any part thereof as
' required and necessary for safe operation. °Relocation" means permanent movernent of Grantee facilities required by the City, ,
- and not temporary or incidental movement of such, facilfies, or ather revisions
. Grantee would accomplish anci charge to third parties without regard to municipal
request. "Rights-of-Way" means the sucface, and the space above and below streets,
roadways, highways, avenues, courts, lanes, alleys, sidewalks, easements, rights-of-
, ways and similar public properties and areas.
Section 5. Acceptance of Pubtic 1Nay Agreement
A., This Public Way Agreement, and any rights granted hereunder, shall
not become effective for any purpose unless and until Grantee files with the City
Clerk (1) the Statement of Acceptance; - attached hereto as Exhibit °C;' and
incorporated by reference, (2) ali verifications of insurance coverage specified under
$ecfion 15, and (3) the financial guarantees specified in Section 16 (collectively,
°Public Way Acceptance"). The dafe that such Public Way Acceptance is fled with
the City Clerk shall be the effective date of this Public Way Agreement.
B. Shoutd the Grantee fail.to file the Public Way Acceptance with the City Clerlc wit_hin 30 days after the.effective date of the ordinance approving the Public
Way Agreement, said agreement will automatically terminate and shall tie null and
void.
Sectlon 6. Construction and Maintenance
A. The Grantee shall apply for, obtain, and comply with the terms of all
permits required under ACC Chapter 12.24 for any work done upon Grantee
Faciiities. Grantee shall camply with all applicable City,. State, and Federal codes,
rules, regulations; and: orders in undertaking such work, which shall be done in a
thorough and profiaent manner.
B. Grantee agrees to coordinate its acfivities with the Ciiy and a!I other
utilities located within the Public Way:
Ordinance No. 5951
Version Date: 9/211200510:12 AM
PUBLIC WAY AGREEN{ENT
Page 4
C. The C'rty expressly reseroes the right to prescribe how and where
Grantee Facilities shall be installed within the Public Way and' may from time to time,
pursuant, to the applicable sections of this Public Way Agreement, require the
removal, reloca#ion and/or replacement thereof in the public inferest and safety at the
- expense of the Grantee.
D. Befoce commencing any work within the Public Way, the Grantee shall_ cbmply with the One Number Locator provisions of RCW Chapter 19.122 to identify
existing utility infrastructure. Section 7. Repair and Emergency Work
In the event of an emergency, the Grantee may commence such repair and
emergency response work as required under tiie arcumstances, provided that the
Grantee shall notify the City Right-of-Way Manager in writing as promptly as
possible, 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
priar written notice in the case of emergency, but shall notify the Grantee in writing as
promptly as possible under the circumstanoes. .
Section S. Damages to City and Third-Party Property
Grantee agrees that should any of its actions under this Public Way
Agreement impairs or damages any City property, survey monument, or property
owned by a third-party, Grantee will restore, at its own cost and expense, said
' property to a safe condition. Such repair work shall be perfiormed and completeci to
the satisfaction of the City Engineer.
Section 9. Location Preference
A. Any structure, equipment, appurtenance or tangible property of a
' private utility, other than the Grantee's, which was installed, consfructed, completed
or in place prior in time to Grarrtee's application for a permit to construct or repair
Grantee Facilities under this Public Way Agreement shall have preference as fo
positioning and location with respect to the Grantee Facilities. However, to the
extent that the Grantee Facilities are completed and installed prior to new or
additional strucfures, equipment, appurtenances or tangible property of an eariier
private utility, being installed or compieted, then'the Grantee Facilities shall have
priority. These rules governing preference shall continue in the event of the necessity
of relocating or changing tfie grade of any such City road or right-of-way: A
relocating utility shall not necessitate the relocation of another utility that otherwise
would not require refocation. This Section shail not apply to any City facilites or
utilities that may in the future require the relocation of Grantee Facilfies. Such
relocations shall be govemed by`Section 11.
Ordinance No. 5851
Version Date: 9/21I200510:12 AM `
PUBLIC WAY AGREEMENT
Page 5
B. 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 far development of new areas, the City, together with
Grantee and ather utility purveyors or authorized users of the Pubic Way; will :
develop and follow the Public Works Director's determination of a oonsensus fior
guidel9nes and procedures for determining specific utility locations, subject
additionally to this agreement and to a Franchise agreement, should one become
necessary. Section 10. Grantee Information
A. Grantee agrees to supply, at no cost to the City, any information
reasonably requested of the Director of Public Works, or Right-of Way Manager, to
coardinate municipaf functions with Grantee's activifies and fulfilf any municipal
obligations under state law. Said information shall include, at a minimum, a quarterly
statement due on the first day of January,. April, July, and October of each year
detailing any changes in the infoRnation submitted as part of Grantee's application
foc this Public Way Agreement, as-built drawings of Grantee Facilities, installation
inventory, and maps and plans showing the lacation of existing or planned facilfies
within the City. Said information may be requested either in hard copy andlor
electronic format, compatible with the City's data base system, as now or hereinafter
existing, including the Cit}Ps geographic information Service (GIS) data base.
Grantee shall keep the Right-of-Way Manager informed of its long-range plans for
coordination with the City's long-range plans.
B. The parties understand that 1Nashington law limits the ability of the City
to shield from public disclosure any information given to the City. Accorclingly, the
parties agree to work together to avoid disclosures of information which would result
in economic loss or damage to Grantee because of mandatory disdosure
requirements to third persons. ln the event the parties cannot agree, the dispute
sha11 be su_bmitted to the City Hearing Examiner, subjecf to the reoord before the
Hearings Examiner. Notwithstanding this option, Grantee shall indemnify and hold
harmless the City for any loss or liability for costs far attomeys fees because of non-
disclosures requested by Grantse under Washington's open public records law,
provided reasanable notice and opportunity to defend was given to Grantee or
Grantee is made aware of the pending of a request or claim.
Section 11. Relocation, of Grantee Facilitles
A. Except as atherwise so required.by law, Grantee agrees to relocate,
remove, or reroute its facilities at no expense or liability to the City, except as may be
required by Section 6, ch. 83, laws of 2000 of the State of Washington, or as further
provided by Title 20 ACC, as ordered by the City Engineer at its sole expense and
liability. Pursuant to the provisions of Section 14, Grantee agrees to protect and
save harmless the City from any customer or third-party claims for service
Ordinance No. 5951
Version Date: 9121/200510:12 AM
PUBLIC WAY AGREEMENT
Page 6
interruption or other losses in connection with any such change, relocation,
abandonment, or vacation of the Pubic Way.
B. In the everrt that the.Public Way shall become a Prima.ry State Highway
as provided by law, the State Department of Transportation may order the Grantee to ;
perform or undertake, at its sole expense, changes to the location of Grarrtee
Facilities so that the same shall not interFere with such state highway and sa that
such facilities shall conform to such new grades or routes as may be established.
C. If a readjustmenf or relocation of the Grantee.Facilities is necessitated
by a request from a party other than the City, that party shall pay the Grantee the
acfual costs thereof.
Sectien 12. Abandonment and or Removaf of Grantee Facilities -
A. - Within one hundred and eighty days (184) of Grantee's perrnanent
cessation of use of the Grantee Facilities, or any portion thereof, the Grantee shall,
at the City's discretion, eitherabandan in place or remove the affected facilities. :
, B. The parties expressly, agree that this Section shaA survive the
expiration, revocation or termination of this Public Way Agreement.
Sectlon 13. Undergrounding
The Grantee Facilities are underground.
Section 14. lndemniflcation and Hold Harmless
A. The Grantee shafl defend, indemnify, and hold the Ciiy and its officers,
officials, agents; employees, and volunteers harmless from any and all_ costs, daims,
injuries, damages, lasses, suits, or liabilities of any nature induding attomeys' fees
arising out of or in connection with the Grantee's performance under this Public Way
Agreement, except to the exten# such costs, daims, injuries, damages, losses, suits,
or liabilities are caused bythe negligence of the.City.
B. The Grantee shall hold the City harmtess from any liability arising out of
or in connection with any cfamage or loss to the Grantee Faalities caused by
maintenance and/or construction wor4c performed by, or on behalf of, the City within
the Public Way or any ofher Cify 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 fighting, emergency rescue, public safety or similar
duties within the City has the capabiliiy to provide.trench, close trench or. conflned
Ordinance Na 5951
Version Date: 9121I200510:12 AM
PUBUC WAY AGREEMENT '
Page 7 '
space rescue. The Grantee, and its agents, assigns, suocessors, or contractors,
shall make such arrangements as Grarrtee deems fit for the provision of such
services. The Grantee shall hold the City harmless from any liabiliiy arising out of or
in connection wifh any damage or Ioss to the Grantee for the City's failure or inability
to provide such services, and, pur5uant to the terms of Section 14(A), the Grantee
shall indemnify the City against any and all third-party costs, claims, injuries,
damages, losses, suits, or liabilities based on the City's failure or inability fo provide
such services.
D. Acceptance by the City of any worlc 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 of the
Agreement, insurance against claims far injuries to persons or damage to property
which may arise from or in connection with the performance of the work hereunder
by the Consultant, its agents, representatives, or employees in the amounts and
types set forth below:
1_ Automobile Liability insurance covering all owned, non-owned,
hired, and leased vehicles with a minimum combined single limit for bodily injury and .
property damage of $1,000,000 per accident. Coverage shall be written on
I,nsurance SeEVices Office (tS0) form CA 00 01 or a substitute form providing
equivalent liability coverage. tfi necessary, the policy sha(I be endorsed to provide
contractual iiability coverage.
2. Commercial General Liability insurance with limits no less than
$1,400,000 each occurrence, $2,000,000 general aggregate and a$2,aoo,000
products-completed operations aggregate fimit. Coverage shall be written on ISO
occurrence form CG 00 01 and shall oover liability arising from premises, operations,
independent contractors, products-campleted operations, stop gap liability,. and personal injury and advertising injury and liability assumed under an insured contract.
The Cammercial General Liability insurancs shall be endorsed to provide the
Aqgregate Per Project Endorsement lSO form CG 25 03 11 85. There shall be no
endorsement or modification of the Commercial Generai Liability insurance for
liability arising from explosion, collapse, or underground property damage. The City
shap be named as an additional insured under the Grantee's Commercial General
Liability insurance policy with respect to the work petiormed under this Public Way
Agreement using IS4 Additional Insured Endotsement CG 20 10 10 01 and
Additional Insured-Completed Operations endorsement CG 20 37 10 01 or substitute
endorsernents providing equivalenf coverage.
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3. Professional Liability insurance with limits no less than
$1,000,000 per claim for all professional employed or retained Crantee to perform
services under this Public Way Agreement.
4: Worlcers' Compensation coverage as required by the lndustrial
Insurance laws of the State of Washington.
6. The insurance policies are to contain, or be endorsed ,to contain, the
following provisions for Automobile tiability. Professional Liability, and Commercial .
General Liability insurance:
1. The Grantee's insurance coverage shall be primary insurance as
respects the City. Any insurance, self-insurance, or insurance poof coverage
' maintained by the City shall be in excess of the Grantee's insurance and shaU not .
contribute with it.
2. The Grantee's insurance . shafl be endorsed to state that
coverage shall not be cancelled by either party except after thirty, (30) days' prior
written notice by certified mail, retum receipt requesfed, has been given to the City.
C. Acceptability of Insurers. Insurance is to be placed with insurers with a_
current A.M. Best rating of nof less than A:VII. D. Verification of Coyerage. Grantee shall fumish th e City with
~ documentation of insurers A.M. Best rating and with original certificates and a copy
of amendatory endorsements, including but not necessarily- limited to the additional
insured endorsement, evidencing the insurance requirements of the Consultant ,
6efore commencement of the work.
E. Grantee shall have the right to self-insure any or aA of the above-
required insurance. Any such self insurance is subject to approval by the City.
Section 16. Petformance Security
Pursuant to ACC Chap#er 20.10, the Grantee shall provide the Ciiy with a
performance bond or ather financial guarantee speafied in ACC Section 20.10.250,
in a form and substance acceptable to the City, securing the Grantee's faithful
compliance with the terms of tfiis Public Way Agreement. Such guarantees shall be
in the amount of ten percent (10%) of the City Engineers estimate of Grantee's
proposed expenditure on the Grantee Facilities, ancf shall in no event exceed
$50,000.
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Section 17. Successors and Assignees
A. A!l the provisions, conditions, regulations and requirements herein '
c:ontained shall be binding upon the successors, assigns of, and independent
contractors of the Grantee, and all rights and pririileges, as well as all obligations and
liabilities of the Grantee shall inure to its successors, assignees and oontractors
equally as if they were specifically mentioned fierein wherever the Grantee is
mentioned.
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 unreasonabty withheld.
C. Grantee and any proposed assignee or transferee shall provide and
certifythe following to the City not tess than 920 days prior to.the proposed date of
transfer (a)Complete information 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 Cihr, plus any other
costs actually and reasonably inr:urred by the City in processing, and investigating.
the proposed assignment or transfer.
Sectlon 18. Dispute Resolution
A. In the everrt of a dispute between the City and the Grantee arising by
reason af this Agreement, the dispute shall first be referreci to the operafional officers
ar representafives designafed by Grantor and Grantee to have oversight over the
administration of this Agreement. The officers or representatives shall meet within
thirty (30) calendar days of either party's request for a meeting, whichever request is
first, and the parties shall make a good faith effort to achieve a resolution of the
dispute.
B. If the parties fail #o achieve a resolution af the. dispute in this manner,.
either. ;party may then pursue any available judicial remedies. This Public Way
Agreement shall be governed by and construed in accordance with the laws of the
State of Washington. In the event any suit, artiitration,:or other proceeding is
insfitufed to enforce any term of this Agreement, the parties specificaily understand
and agree that venue sha11 be exclusively in King Gounty, Washington. The
prevailing party in any such action shall be entitled to.its attorneys' fees and oosts of
suit; which shall be fixed by the judge hearing the case, and such fees shall be
included in the judgment.
!U
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PUBLIC WAY AGREEMENT
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Section 99. Enforcement and Remedies
A. If the Grantes shall willfully violate, or fail to oompfy with any of the
provisions of this Public 1Nay Agreement through willful or unreasonable negligence,
ar should it fail to heed or cornply 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 not'rfication. If the City determines the breach cannot be cuced within thirty days, the City may speciiy a
longer cure period, and condition the extension of time on Grantee's submittal„of a
plan to cure the breach within the specified period, commencement of.work within.
the original thirty day cure period, and diligent prosecution of the worlc to completion.
If the breach is nof cured within the specified time, or the Grantee does not comply
with the specified conditions, the Grantee, and its successors or assignees, shall
forfeit all rights conferred hereunder, and the Public Way Agresment may be revoked
or annulted by;the City with no further notificafion.
B. Should the Ciiy determine that Grantee is acting beyond the scope of
permission granted herein for Grantee Facilities and Grantee Servic:es, the City
reserves the right to cancel this Public Way Agreement and require the Granfee to
apply for, obfain, 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 actians. Section 20. Compliance with Laws and Regulatlons
A. This Public Way Agreement is subject to, and the Grantee shall oomply
with all applicable federal and state or City laws, regulations and policies (inctuding
aU applicable elements of the City's comprehensive plan), in conformance with
federal laws and regulations, affecting performance under this Public Way
. Agreement. Furthermore, notwithstanding any other terms of this agreement
appearing to the contrary, the Grantee shall be subject to the police power of the City
to adopt and enforce general ordinances necessary to pro#ect the safety and wetfare
of the general public in relation to the rights granted in the Public Way.
B. The City reserves the right at any time, upon a forty-eight (48) haur
written notice to the Grantee, to negotiate in good faith with Grantee to amend this
Public Way Agreement to ooriform to any hereafter enacted, amended, or adopted
federaf or state statute or regulation relating to the pubiic health, safety, and welfare,
or relating to roadway regulation, or a City Ordinance enacted pursuant to such
federal or state statute or regulation. The City may teRninate this Public Way
Agreement upon thirty (30) days written notice to the Grantee, if tha Grantee fails to
comply with such amendment or modification.
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Section 21. Licensej Tax and Other Charges
This Public Way Agreement shaU not exempt the Grantee from any future
license, tax, or charge which the City may hereinafter adopt pursuant to authority
granted to it under state ar federal law for revenue or as reimbursement for. use and
occupancy of public ways.
Section 22. Consequential Damages Limitation
Notwithstanding any othec provision of this Agreement, in no event shall either
party be liable for any special, incidental, indirect, punitive. re[iance, consequential or
similar damages.
Section 23. Severability
!f any poraon of this Public V11ay Agreement is deerned invalid, the remainder
portions shalt remain in effect.
Section 24. Titles
The section titles used herein are for reference only and should not be used
for the purpase of interpreting this Public Way Agreement
ADOPTED AND APPROVED this day of 2005. Cl BUR ~
` PET R B. LEWIS
MAYOR '
ATTEST:
Dani'alfe E. Daskam,
City Clerk
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anU,iel2B.id
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City Attomey /lf 7 -4orig
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PUBLIC WAY AGREEMENT
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