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HomeMy WebLinkAboutITEM VIII-A-2 * crnr oF. - * * 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. Ordinance No. 5951 " Version Date: 91211200510:12 AM PUBUC WAY AGREEMENT Page 8 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. Ordinance Na 5951 Version Date: 9l21l200510:12 AM PUBLIC WAY AGREEMENT Page 9 L---- 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 Ordinance No. 5951 'Version Date: 9/21/200510:12 AM PUBLIC WAY AGREEMENT Page 10 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. lJJ Ordinance No. 5951 Version Date: 9/211200510:12 AM PUBLIC WAY AGREEMENT Page 11 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 A , . t ; anU,iel2B.id : City Attomey /lf 7 -4orig OKlinance No. 5951 Version Date: 9121/200510:12 AM PUBLIC WAY AGREEMENT Page 12 .