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 ~
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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
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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