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HomeMy WebLinkAboutITEM III-BCITY OF AGENDA BILL APPROVAL FORM * WASHINGTON Agenda Subject: Date: Ordinance No. 6326 August 26, 2010 Department: Attachments: Budget Impact: Public Works Ordinance No. 6326 , Exhibit A, $0 Ordinance No. 5951 Administrative Recommendation: City Council to introduce and adopt Ordinance No. 6326. Background Summary: AT&T Corporation has applied for renewal of their current Public Way Agreement No. 05-51 which was authorized by Ordinance No. 5951 (please see attached document) and is set to expire on October 3, 2010. This agreement is for existing fiber optic 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 current 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 City and the applicant with only minor amendments 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 authorizes AT&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 Reviewed by Council & Committees: Reviewed by Departments & Divisions: ❑ Arts Commission COUNCIL COMMITTEES: ❑ Building ❑ M&0 ❑ Airport ❑ Finance ❑ Cemetery ❑ Mayor ❑ Hearing Examiner ❑ Municipal Serv. ❑ Finance ❑ Parks ❑ Human Services ®Planning & CD ❑ Fire ❑ Planning ❑ Park Board ®Public Works ®Legal ❑ Police ❑ Planning Comm. ❑ Other ®Public Works ❑ Human Resources Action: Committee Approval: ❑Yes ❑No Council Approval: ❑Yes ❑No Call for Public Hearing I l Referred to Until I l Tabled Until I I Councilmember: Wagner Staff: Dowdy Meeting Date: October 4, 2010 Item Number: k t + •1~ ORDINANCE N0.6326 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF AUBURN, WASHINGTON, RELATING TO A PUBLIC WAY AGREEMENT WITH AT&T; AUTHORIZING 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 Ordinance 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 citizens of Auburn, NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF AUBURN, WASHINGTON, DO ORDAIN as follows: Section 1. The City approves Grantee'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 Sidney Anderson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Telephone: Q~3-~~2'!(678} 627-5318; Fax ~7?0; 9535533(281) 664-4532 r,~,~,nr,r,~~Un~++ ^^msa2612 att com YY V1 1 1L1V1\`W {.All. VV1 1 1 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 f^ur (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 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. 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 against 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 C^nsu~tan±Grantee, 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, i"d°vN°vn~ont ~~ntruvtvi v, products-completed operations, st^;~ 0a;~ 1~'~bi~°ity, and personal injury and advertising injury and liar°ility ass-umed i inrlor ~n in~i iron ~„n+r,,,+ 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 liability arising from explosion, collapse, or underground property damage. The City shall be nam°d 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 Operations endorsement CG 20 37 10 01 or substitute endorsements providing equivalent coverage. Ordinance No. 6326 August 26, 2010 Amendatory Renewal PWA 10-11 Page 2 of 5 3. Professional Liability insurance with limits no less than $1,000,000 per claim for all professionals... employed ^r reta~nedby 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 insurance and shall not contribute with it. 2. The Grantee's insurance shall bo ond^~ sed r^ state that co~~era~,e shall not be cancelled by °"it~e°r party except after thirty (30) days' prior written notice by ~°r~ifi°rl m~il~ r°~i irn r°r+°ip~ r°~i i°e~°rl~ has been given to the N VVI LIIIVbt 11 IN11 1 V11,r11 I I I VVVI H I V 1.1VVlVV1 Clty. 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 C^ns~ltant 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 subjectto approval by the City. Section 5. 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 Acceptance, attached hereto as Exhibit "A", and incorporated by reference. The date that such Statement of Acceptance is filed with the City Clerk shall be the effective date of the renewal, which the City has assigned "PWA 10-11 Ordinance No. 6326 August 26, 2010 Amendatory Renewal PWA 10-11 Page 3 of 5 B. Should the Grantee fail to file the Statement 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 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 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 the validity of the remainder of this ordinance, orthe 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 MAYO R 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: Daniel B. Heid, 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, 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 that 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 hereunto set my hand and affixed my official seal on the date hereinabove set forth. Signature NOTARY PUBLIC in and for the State of ,residing at MY COMMISSION EXPIRES: Ordinance No. 6326 August 26, 2010 Amendatory Renewal PWA 10-11 Page 1 of 1 oRD~NANE IVO. 9 ~ 1 AN ORDINANCE OF THE CITY ~OUNOIL OF THE CITY OF AUBURN, V~IASHiNCTON, APPROUINO A PUBLIC VVAY AGREEMENT WITH AT&T OORP This Public I#~ay Agreement is enured into by and between the pity of Auburn, Washington, a municipal carparatian ~"pity"} and ATT Oarp., a New York corporation {"Grantee"~. WHEREAS, Grantee has applied to the Oity for a nan-exclusive Public UVay Areer~ent far the right of entry, use, and accupatian of certain public right~s~-of'uvay within the Oity of Auburn, expressly to install, oanstruct, erect, operate, r~aintair~, repair, relocate and remove its facilities in, on, upon, slang andlar across thane right~s~-of way; and VIJHEREAS, the pity has reviewed the Grantee's application and determined that the location of grantee's facilities within the requested rights}-of~way is in the best interest of the pity and the citizens of Auburn, NOVA, THEREFORE, THE CITY OOUNiL OF THE CITY OF AUBURN, VIIASHIiVOTON, DO ORDAIN as failows: In cansideratian of the mutual benefits and conditions set forth below, including acceptance and agreerr~ent of the Public VIlay Agreement by the Grantee in the farm substantially s set forth in Exhibit hereto, the Oity of Auburn agrees and ratifies acceptance to the Public lay Agreer~ent, as follows: eot~on Notice A. Written notices to the parties shall be sent by certified mail to the following addresses, unless a different address shall be designated in vtirriting and delivered to the other party. pity: Right-of-Vllay Manager pity of Auburn 5 Vllet Main Street Auburn: wA 98aD~-49g~ Telephone: 9~-3g~a; Fax: 9~-~48 with a copy to: pity lens pity of Auburn ~ ll~est Main Street Auburn, VVA 98aa ~ -499 ordinance No. ~9~1 Version Date. ~t~ ~ ~~0~~ ~ ~ 2 AM PU~LI UVAY AGREEMENT Page ~ grantee: AT&T Corp. Right-of-llvay Engineering X001 Cobb Parl~wayt Nov - Roor~ ~ ~ Atlanta, A X09 Telephone: ~770~ g5-55 ~ ;Fax: pjwornacl~ aatt.com with a copy to: AT~T Corp. Attn: Chief RAIN Counsel one ATS~T vllay Bedminster, NJ o~~1-072 B~ Any changes to the above-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. The above-stated Grantee voice and fax telephone numbers shall be staffed at least during normal business hours, Pacific time zone. ectian grant cf Right#~ lJse Public Vlfay A. ub~ect to the terms and conditions stated herein, the pity grants to the Grantee general permission to enter, use, and occupy the rights}-of-way specified in Exhibit "A," attached hereto and incorporated by reference {tie "Public vvay"}. B. The grantee is authorized to install remove, construct, erects operate, maintain, relocate 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 limitation, long distance voice and data co~rrnunications and other lawful comrr~unications as disclosed to the fit from time to tine ~"grantee services"~ in, along, under and y across the Public IIIJay, for the sole purpose of providing commercial utility or telecorr~r~unications services to persons or areas outside the pity. This Public way Agreement does not authorize the use of the Public Uvay for any facilities or services other than grantee Facilities and Grantee services, and it extends no rights or privilege relative to any facilities or services of any type, including grantee Facilities and grantee services, elsewhere within the City. I~. This Public VVay Agreement is non-exclusive and does not prohibit the pity from entering into other agreements, including Public vvay Agreements, impacting the Public vllay, unless the pity determines that entering into such agreements interferes with grantee's right setforth herein. Cr~inanc~ No. 595 Version date: 9!2 ~ J~O~~ ~ 0:1 ~ AM PUBLICVVAYAREEMENT Page 2 I E. Except as explicitly set forth herein this Public vllay Agreement does not v~raive any rights that the City has or may hereafter acquire with respect to the Public vllay or any other City rands, rights-of-way, property, or any portions thereof. This Public INay Agreement shall be subject to the power of err~inent donnain, and in any prveeeding under eminent domain, the Grantee acknowledges its use of the PublicvVay shall have no value. F. The pity reserves the right to change, regrade, relocate, abandon, or vacate the Public Ilvay. If, at any time during the term of this Public I~Ilay Agreement, the pity vacates any portion of the Public way, the City shall reserve an easement for public utilities within that vacated portion, pursuant to RV~J .Tg.g~, within which the grantee may continue to operate the grantee Facilities under the terms of this Public 111JayAgreement farthe remaining period set forth under Section . The grantee agrees that its use of Public Uvay shall at all times be subordinated to and subject to the pity and the public's need for municipal infrastructure, travel, and access to the Public Vllay, except as may be otherwise required bylaw, Fi. Should the grantee seek to use the Public Uvay to provide services, including grantee Services, to pity residents, the grantee shall apply for, obtain, and complyv~rith the terns of a City franchise agreement for such use. ecti~n 3. T~rrr~ of Agreerrrent A. This Public Vvay Agreement shall run for a period of five years, frog the date of execution specified in Section B. Renewal Option of Term: The Grantee may renew this Public INay Agreement for up to four {4} additional five year periods upon submission and approval of the application specified under ABC D.~~.1~g, as it now exists or i amended, within the tirr~eframe set forth therein {currently ~ S~ to 1 ~g days prior to expiration of the then-current term. Any materials submitted by the grantee for a previous application may be considered by the City in reviewing a current application, and the Grantee sha11 only submit those materials deemed necessary by the City to address changes in the grantee Facilities or grantee Services, or to re#lect specific reporting periods mandated by the ACC. aeotian Defi~nitio~e For the purpose of this agreement: "ABC" means the Auburn City Code. Ordinance Igo. X951 Ilerian Date: ~~~1~~05 ~~:1~ AM PUBLIC V1~AY AREE~IENT Pale 3  i '~Err~ergency" means ~ condition of irrNminent danger to the health, safety and welfare of Persons or property located within the pity including, without limitation, damage to Persons or property from natural consequences, such as storms, earkhquakes, riats, ac#s of terrorism or wars. . "Maintenance or Maintain" shall mean examining, testing, inspecting, repairing, maintaining and replacing the existing grantee Facilities or any part thereof as required and necessary for safe operation. "Relocation" means permanent movement of grantee facilities required by the city, and not temporary ar incidental movement of such facilities, or other revisions grantee wauld accomplish and charge to third parties without regard to rr~unicipal request. "Rights-of-llllay" means the surrace and the space above and below streets, roadways, highways, avenues, cour#, lanes, alleys, sidewalks, easements, rights-of- ways and similar public properkie and areas. Section Acceptance of Public V1fay Agreement A. This Public Vllay Agreement, and any rights granted hereunder, shall not become effective for any purpose unless and until grantee files uwrith the pity clerk } the Statement of Acceptance, attached hereto as Exhibit and incorporated by reference, all verifications of insurance coverage specified under Section ~ , and the financial guarantees specified in Section ~ ~ ~callectively, iiPublic v1~ay Acceptance"}. The date that such Public Vvay Acceptance is filed with the pity clerk shall be the effective date of this Public vl~ay Agreement. B. Should the grantee fail to file the Public vllay Acceptance with the city clerk v`rithin ~o days after the effective date of the ordinance approving the public way Agreement, said agreement will automatically terminate and shall b null and void. Scotian construction and ~Ilaintenance A. The grantee shall apply for, obtain, and comply with the terms of all permits required under Acc chapter ~~.~4 for any work done upon grantee Facilities. grantee shall comply with all applicable pity, State, and Federal codes, rules, regulations, and orders in undertaking such work, which shall be done in a thorough and proficient manner grantee agrees to coordinate its activities with the pity and ail other utilities located within the Public vl~ay. v. - w w w w w w w■ w r■~ w w w w w■ ~r~inance IVY. ~9~1 Version ~~te; 91~ 112~D5 ~ ~ ~ AID PUBL1 vVAY AREEI~ENT Page 4  i _ _ The pity expressly reserves the right to prescribe how and where Grantee Facilities sha11 be installed within the Public vlfay and may from time to time, pursuant to the applicable sections of this Public vl~ay Agreement, require the rernovalt relocation andlar replacement thereof in the public interest and safety at the expense of the Grantee, D. ~efare commencing any work within the Public Inlay, the Grantee shall comply with the one Number Locator provisions of RGUV chapter ~ ~2 to identify exlsting utlllty Infrastructure. ecti~~ Repair ~Irrd ~ergency V1~~ri~ In the event of an emergency, the Grantee may commence such repair and emergency response work as required under the circumstances, provided that the Grantee shall notify the pity Right-of-vUay Manager in writing a promptly as possible, before such repair or emergency work commences, or as soon thereafter as possible, if advanoe notice is not practical. The pity may act, at any tirr~e, without prior written notice in the case of emergency, but shall notify the Grantee in writing a promptly as passible under the circumstances { section 8. ~am~ge to pity and Third-Party Property Grantee agrees that should any of its actions under this Public vVay Agreement impairs ar damages any City property, survey monument, or property owned by athird-party, Grantee will restore, at its own cost and e~cpense, said property to a safe condition, such repair work shall be performed and completed 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, constructed, completed or in place prior in time to Grantee's application far a permit to construct or repair Grantee Facilities under this Public llvay Agreement shall have preference as to positioning and location with respect to the Grantee Facilities. However, to the extent that the Grantee Facilities are completed and installed prior to new ar additional structures, equipment, appurtenances or tangible property of an earlier private utility, being installed or completed, then the Grantee Facilities shall have priority These rules governing preference shall continue in the event of the necessity of relocating or changing the grade of any such pity road or right-of-way. A relocating utility sha11 not necessitate the relocation of another utility that otherwise would not require relocation. This section shall not apply to any City facilities or utilities that may in the future require the relocation of Grantee Facilities. such relocations shall be governed by section ~ ~ . . r r w w ~ ~ . . ~ . r w w . . . . ~ r w ordnance No. 595 Version Date: ~~2 ~ I2~~514: ~ 2 AM PI~BLIC 1NAY AGR~~M~NT Page ~  grantee shall maintain ~ minimum underground hari~ontal separation of dive feet from pity water facilities and ten a} feet fram above~graund pity water facilities; provided, that for develaprnent of new areas, the Dity, together with grantee and other utility purveyors or authorised users of the Pubic uVay, will develop and fallow the Public vVorks Directors determination of a consensus far guidelines and procedures far determining specific utility locations, subject additionally to this agreement and to a l=ranchise agreement, should one becor~e necessary. section ~ grantee Inf~rma~ion A. grantee agrees to supply, at no cast to the pity, any information reasonably requested of the Director of Public vllorks, or Right-of 11Vay Manager, to coordinate municipal functions with grantee's activities and fulfill any municipal obligations under state lava. laid 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 information submitted part of grantee's application far this Public uVay Agreement, as-built drawings of grantee l=acilities, installation inventory, and maps and plans showing the location of existing ar planned facilities within the pity. laid information nay be requested either in hard copy and~or electronic format, compatible with the pity's data base system, as now or hereinafter existing, including the pity's geographic information service ~1~ data base. grantee shall keep the Right-of-llVay Manager infarrr~ed of its long-range plans far coordination with the pity's long-range plans. The parties understand that 1lVashington iaw limits the ability of the pity to shield fram public disclosure any information given to the pity. AccordingEy, the parties agree to work together to avoid disclosures of information which would result in economic lass or damage to grantee because of rr~andatory disclosure requirements to third persons. in the event the parties cannot agree, the dispute shall be submitted to the pity Hearing Examiner, subject to the record before the I•-learings Examiner. Notwithstanding this option, grantee shall indemnify and hold harmless the pity for any lass or liability for casts for attorneys fees because of nan- disclosures requested by grantee under v~Jashington's open public retards law, provided reasonable notice and opportunity to defend was given to grantee or grantee i made aware of the pending of a request or claim. eotior~ ~ ~ . Relocation, of Grantee Feciliti~s A. Except a otherwise o required by law, grantee agrees to relocate, remove: or reroute its facilities at no e~cpense ar liability to the pity, except as may be required by Section , ch. 8, laws of ~aaa of the state of uVashington, or as further provided by Titie A, as ordered by the Dity Engineer at its sale expense and liability. Pursuant to the provisions of Section Grantee agrees to protect and sage harmless the pity from any customer or third-party claims for service ordinance Nv. 59~~ Ilersi~n Date: 91~ ~ J~04~ ~ ~:1 ~ AM PUBLIC ~IAY A~REEM~NT Pale ~  i interruption ar other fosses in connection with any such change, relocation, abandonment, ar vacation of the Pubic v~ay. B. In the went that the Public vUay shall became a Primary state Highway as provided by law, the state department of Transportation may order the Grantee to perform ar undertal~e, at lts sale expense, changes to the location of Grantee Facilities sa 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, if a readjustment ar relocation of the Grantee Facilities is necessitated by a request Pram a party other than the City, that party shall pay the Grantee the actual casts thereof. ectian 12. Abandonment and or Removal of Grantee Facilities A. Within one hundred and eighty days {'l~a~ of Grantee's ~errnanent cessation of use of the Grantee Facilities, or any pardon thereof, the Grantee shall, at the City's discretion, either abandon in place or remove the affected facilities. B. The parties expressly agree that this section shall survive the expiration, revocation ortermination of this Public Uvay Agreement. section ~ 3. Undergrounding The Grantee Facilities are underground. action ~4, lnderYrnification and Hold Harmless A. The Grantee shall defend, indemnify, and hold the City and its officers, officials, agents, err~ployees, and volunteers harmless from any and all cysts, claims, injuries, damages, I~sses, suits, ar liabilities of any nature including attorneys' fees arising out of or in connection with the Grantee's performance under this Public ~IVay Agreement, except to the extent such casts, claims, injuries, damages, lasses, suits, ar liabilities are caused by the negligence of the .city. H. The Grantee shall hold the pity harmless from any liability arising out of or in connection 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 v11ay or any other City road, right-of-way, ar other praperky, e~ccept to the extent any such damage or lass 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 far fire fighting, emergency rescue, public safety or similar duties within the City has the capability to provide trench, close trench ar confined ordinance No. Version Date; 91~~~~~~~ 10;~~ AM ~UBLI UVAY AGREEMENT Pogo 7  i space rescue. The Grantee, and its agents, assigns, successors, or contractors, shall make such arrangements a Grantee .deems fit for the provision of such services. The Grantee shall hold the pity harmless from any liability arising out of ar in connection with any damage or loss to the Grantee forthe pity's failure or inability to provide such services, and, pursuant to the terms of ectian ~ 4{A}, the Grantee shall indemnify the pity against any and all third-party costs, claims, injuries, damages, losses, suits, or liabilities based on the pity's failure or inability to provide such services. D. Acceptance by the City of any work performed by the Grantee shall not be grounds far avoidance of this section. ect~~n ~ . Insurance A. The Grantee shall procure and maintain for the duration of the Agreement, insurance against 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 anultant, its agents, representatives, or employees in the amounts and types set forth below: Automobile Liability insurance covering all owned, non~owned, hiredt and leased vehicles with a n~inirr~um combined single limit for bodily injury and property damage of ~,ggg,ooo per accident coverage shall be written on Insurance services Gffice {I} farm A o~ g~ or a substitute form providing equivalent liability coverage. If necessary, the policy shall be endorsed t~ provide contractual liability coverage. Gar~r~ercial General Liability insurance with limits no less than ~,gg0,000 each occurrence, ~,OOg,ggg general aggregate and a ~,gg~,0o0 products-completed operations aggregate limit. coverage shall be written on IG occurrence form gg g~ and shall cover liability arising from premises, operations, independent contractors, products-completed operations, stop gap liability, and personal injury and adverkising injury and liability assumed under an insured contract The commercial General Liability insurance shall be endorsed to provide the Aggregate Per Project Endorsement I~ form 0 ~ ~ There shall be no endorsement ar modification of the Garnmercial General Liability insurance for liability arising from explosion, collapse, ar underground property darr~age. The pity shall be named as n additional insured under the Grantee's ~omrnercial General Liability insurance policy with respect to the orb performed under this Public vllay Agreement using I~ Additional insured Endorsement G 0 10 1 Q and Additional I nsured-orr~pleted Gperations endorsement GG 7 ~ g or substitute endorsements providing equivalent coverage. r• r w w~~~ f~~~~ r r w ordinance No. 5~~1 lvericn Gate: f~11~~~5 ~ 1 ~ AM PUBLl I~IIAY AGREEMENT Page ~ Prafessianl Liability insurance with limits na less than ~,a~4,0~a per clir~ far all professional err~ployed ar retained Grantee to perform services underthis Public 1ayAgreement. 4. 1lvorkers' or~pensation coverage as required by the Industrial Insurance laws of the state of vVashington. The insurance policies are to contain, or be endorsed to contain, the fallowing provisions far Automobile Liability, Professional Liability, and omrnercial General Liability insurance: The Grantee's insurance coverage shall be primary insurance as respects the pity. Any insurance, self insurance, or insurance pool coverage rrraintained by the City shall be in excess of the Grantee's insurance and shall nat contribute with it. The Grantee's insurance shall be endorsed to state that coverage shall not be cancelled by either paY e~ccept after thirty ~a} days' prior uvritten notice by certified mail, return receipt requested, has been given to the pity. Acceptability of Insurers. Insurance is to be placed with insurers with a current A.IIII~ Best rating of not less than A:vll. verification of Coverage. Grantee shall furnish the City with dccurr~entation 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 consultant 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 pity. section Performance security Pursuant to AGG chapter ~g.~0, the Grantee shall provide the pity with a performance band or other financial guarantee specified in A section ~a.~a.~ba, in a farm and substance acceptable to the City, securing the Grantee's faithful compliance with the terms of this Public ~Ilay Agreement. such guarantees shall be in the arnaunt of ten percent ~1 a°lo} of the pity Engineer's estimate of Grantee's proposed expenditure an the Grantee Facilities, and shall in no event exceed 5a,gaa. 111 11I ordinance No, 591 version Date: I~11~0~5 ~ ~ ~ AM PUBLIC V1rAY AGI~E~~IEI~T Pale 9 I etion ~ ucceor and Assignees A. Aii the provisions, conditions, regulations and requirements herein contained shall be binding upon the successors, assigns of, and independent contractors of the Grantee, and all rights and privileges, as well as all obligations and liabilities of the Grantee shall inure to its successors, assignees and contractors equally as if they were specifically mentioned herein ~rherever the Grantee i 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 unreaonably~rithheld. Grantee and any proposed assignee or transferee shall provide and cerkify the follovuing tv the City not less than ~ 2g days prior to the proposed date of transfer: ~a} Complete infarmation setting forth the nature, term and conditions of the proposed assignment ar transfer; fib} All infarmation required by the City of an applicant far a Public Way Agreement u~ith respect to the proposed assignee or transferee; and, ~c} An application fee which shall b set by the City, plus any other costs actually and reasonably incurred by the City in processing, and investigating the proposed assignment ortransfer. ectian ~8. Dispute Resolution A. 1 n the event of a dispute between 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 Grantee to have oversight over the administration of this Agreement The officers or representatives shall meet v~ithin thirty ~a} calendar days of either party's request for a meeting, ~rhichever request i first, and the parties shall make a good faith effort to achieve a resolution of the dispute. B. if the parties fail to achieve a resalutian of the dispute in this rnannerx either party may then pursue any available judicial remedies. This Public UVay Agreement shall be governed by and construed in accordance with the lags of the state of Washington. In the event any suit, arbitration, or other proceeding is instituted to enforce any term of this Agreement, the porkies specifically understand and .agree that venue shall be exclusively in Ding County, 1l~ashinton. The prevailing party in any such action shall be entitled to its attorneys' fees and casts of suit, which shall be fined by the judge hearing the case, and such fees shall be included in the judgment. ~~1 ardinance Na. ~95~ Version Date. 9th ~ ~~~0~ 1 ~ ~ AM PUBLIC vUAYAGREEM~NT Page _ section Enforcement and Remedies A. If the grantee shall willfully violate, or fail to carnply with any of the provisions of this Public vUay Agreement through willful yr unreasonable negligence, or should it fail to heed or amply with any native given to grantee under the pro~rision of this agreement, the pity may, at its discretion, provide Grantee with written native to cure the breach vtirithin thirty ~a} days of notification. If the pity determines the breach cannot be cured within thirty days, the pity may specify a longer cure period, and condition the extension of time on grantee's submittal of a plan to cure the breach within the specified periad, commencement of work within the original thirty day cure periad, and diligent prasecutivn of the work to completion. If the breach is not cured within the specified time, or the grantee does not comply with the specified conditiar~s, the grantee, and its successors ar assignees, shall forfeit all rights conferred hereunder, and the Public vVayAgreement maybe revoked or annulled bythe pity with no further nvtificativn. B, shauld the pity determine that grantee is acting beyond the scope of permission granted herein far grantee Facilities and grantee services, the pity reserves the right to cancel this Public lll~ay Agreement and require the grantee to apply far, attain, and amply with all applicable pity permits, franchises, ar other pity permissions far such actions, and if the grantee's actions are not allowed under the Auburn pity bode, to camps! grantee to cease such actions, ect~~n ~0. or~piiance with Laves and ~e~ulations A. This Public vVayAgreer~ent is subject ta, and the grantee shall comply with all applicable federal and state or pity lags, regulations and policies including all applicable elements of the pity's comprehensive plan}, in canfarr~ance with federal laws and regulations, affecting performance under this Public vUay Agreement. Furkhermare, notwithstanding any other terrr~s of this agreement appearing to the contrary, the grantee shall be subject to the police paver of the pity to adapt and enforce general ordinances necessary to protect the safety and welfare of the general public in relation to the rights granted in the Public vMlay. B. The pity reserves the right at any time, upon a (arty-eight ~48~ hour written notice to the grantee, to negotiate in good faith with grantee to amend this Public vl~ay Agreement to conform to any hereafter enacted, amended, or adopted federal ar state statute or regulation relating to the public health, safety, and welfare, ar relating to roadway regulation, ar a ity ordinance enacted pursuant to such federal or state statute or regulatianw The pity may terminate this Public way Agreement upon thirty ~3a}days written native to the grantee, if the grantee fails to comply with such amendment ar modification, lIl ordinance N~. 591 Version date: 9I~ 11~4~5 ~ ~ 2 AM Pl~BL1C V1IAY AREEI~~NT Page ~ ~  Section . Lioer~e, Tax and other Charges This Public vVay Agreement shall riot exempt the Grantee from any future license, tax, or charge v~rhich the City may hereinafter adopt pursuant to authority granted to it under state or federal lave for revenue or as reimbursement for use and occupancy of public ways. Seotiorr Consegnentiai Damages Limitation Notuvithtanding any other provision of this Agreement, in no evert shall either party be liable for any special, incidental, indirect, punitive, reliance, consequential or similar damages. section Z. e~rerabilit If any portion of this Public ~vay Agreement i deemed invalid, the remainder portions shall remain in effect. Section ~4. Titles The section titles used herein are for reference only and should not be used for the purpose of interpreting this Public Uvay Agreement. r ADOPTED AND APPROVED this ~ da of , boo. Y Cl BUR PET R B. LE~JIJIS MA1~oR ATTEST: Rani E. Dakam, City Clerk s i 1 angel eld, pity Attorney ~ ~ ~ Drdir~anc~ No. ~le~sion Date: 91~ ~ X2045 ~ ~ 2 AM PUBL~ V1~AY AGREEMENT Pale ~ ~  i