The URL can be used to link to this page

Ordinance 341800006.9000000 WSS /gjz 7/19/02 R:8 /22 /02gjz R:8 /29 /02gjz R:9 /13 /02amg ORDINANCE NO. 3418 AN ORDINANCE OF THE CITY OF EDMONDS, WASHINGTON, GRANTING TO VOICESTREAM PCS III CORPORATION, A RIGHT -OF -WAY USE PERMIT, TO INSTALL, OPERATE, AND MAINTAIN A MONOPOLE WITHIN A CERTAIN DESIGNATED PUBLIC RIGHT -OF- WAY OF THE CITY OF EDMONDS, WASHINGTON, PRESCRIBING CERTAIN RIGHTS, DUTIES, TERMS, AND CONDITIONS WITH RESPECT THERETO, AND ESTABLISHING AN EFFECTIVE DATE. WHEREAS, VoiceStream PCS III Corporation ( "VoiceStream ") has requested that the City grant it the right to install, operate, and maintain a sixty -foot monopole within the public ways of the City; and WHEREAS, such request to replace an existing PUD power pole has been approved by the Architectural Design Board and hearing examiner, and WHEREAS, the City Council has found it desirable for the welfare of the City and its residents that such a Right -of -Way Use Permit be granted to VoiceStream; and WHEREAS, the City Council has the authority under RCW 35A.47.040 to grant Right- of -Way Use Permits and franchises for the use of its streets and other public properties; and WHEREAS, the City is willing to grant the rights requested subject to certain terms and conditions, NOW, THEREFORE, { WSS524961.D0Q1/00006.900000/) THE CITY COUNCIL OF THE CITY OF EDMONDS, WASHINGTON DO ORDAIN AS FOLLOWS: Section 1. Definitions. For the purposes of this Right -of -Way Use Permit, the following terms, phrases, words, and abbreviations shall have the meanings ascribed to them below. When not inconsistent with the context, words used in the present tense include the future tense, words in the plural number include the singular number and words in the singular number include the plural number. a. "Affiliate" means an entity which owns or controls, is owned or controlled by, or is under common ownership with the Permittee. b. City" means the City of Edmonds, Washington. C. "Communication Service" shall mean any telecommunications services, telecommunications capacity, or dark fiber, provided by the Permittee using its Communication System or Facilities, either directly or as a carrier for its subsidiaries, Affiliates, or any other person engaged in Communication Services, including, but not limited to, the transmission of voice, data or other electronic information, facsimile reproduction, burglar alarm monitoring, meter reading and home shopping, or other subsequently developed technology which carries an electronic signal over fiber optic cable. However, Communications Services shall not include the provision of cable television, open video, or similar services, as defined in the Communications Act of 1934, as amended, for which a separate permit would be required. d. "Communication" or "Facilities" shall mean the Permittee's (or other valid right of way use permit holder's) sixty -foot monopole and attendant structures constructed and operated within the City's Public Way, and shall include all cables, wires, conduits, ducts, pedestals, and any associated converter, equipment, or other facilities within the City's Public Way, designed and constructed for the purpose of providing Communication Service. The terms shall also include such additional facilities as the parties by mutual agreement shall designate in the future and incorporate by written addendum. A general description of the Facilities currently planned by Permittee is set forth in Exhibit A, attached hereto and incorporated by this reference. e. "FCC" means the Federal Communications Commission, or any successor governmental entity hereto. f. " Permittee" means VoiceStream PCS III Corporation, or the lawful successor, transferee, or assignee thereof. g. "Person" means an individual, partnership, association, joint stock company, trust, corporation, or governmental entity. { WSS524961.DOC;1 /00006.900000/} 2 h. "Public Way" shall mean the surface of, and any space above or below, any public street, highway, freeway, bridge, path, alley, court, boulevard, sidewalk, parkway, lane, drive circle, or other public right -of -way, including, but not limited to, public utility easements, utility strips, or rights -of -way dedicated for compatible uses and .any temporary or permanent fixtures or improvements located thereon now or hereafter held by the City in the Service Area which shall entitle the City and the Permittee the use thereof for the purpose of installing, operating, repairing, and maintaining the Facility. Public Way shall also mean any easement now or hereafter held by the City within the Service Area for the purpose of public travel, or for utility or public service use dedicated for compatible uses, and shall include other easements or rights -of -way as shall within their proper use and meaning entitle the City and the Permittee to the use thereof for the purposes of installing or transmitting the Permittee's Communication Services over poles, wires, cable, conductors, amplifiers, appliances, attachments, and other property as may be ordinarily necessary and pertinent to the Communication System. Section 2. Authority Granted. The City hereby grants to the Permittee, its heirs, successors, legal representatives, and assigns, subject to the terms and conditions hereinafter get forth, the right, privilege, and authority to construct, reconstruct, upgrade, operate, maintain, replace, and use all necessary equipment and Facilities thereto for the Permittee's Communication System. However, the Permittee is only authorized to place its communication Facilities in, under, on, across, over, through, along, or below the Public Way of the City described in Exhibit A hereto. Section 3. Construction Right-of-Way Use Permits Required. A. Prior to site - specific location and installation of any portion of its communication Facilities within a public way, the Right -of -Way Use Permittee shall apply for and obtain a Construction Right -of -Way Use Permit pursuant to EMC Chapter 18.60. B. Unless otherwise provided in said Right -of -Way Use Permit, the Permittee shall give the City at least 48 hours notice of the Permittee's intent to commence work in the Public Ways. The Permittee shall file plans or maps with the City showing the proposed location of its communication Facilities and pay all duly established Right -of -Way Use Permit and inspection fees associated with the processing of the Right -of -Way Use Permit. In no case shall any work commence within any public way without said Construction Right -of -Way Use Permit, except as otherwise provided in this Right -of -Way Use Permit. Section 4. Grant Limited to Occupation. Nothing contained herein shall be construed to grant or convey any right, title, or interest in the Public Ways of the City to the Permittee, nor shall anything contained herein constitute a warranty of title. Section 5. Term of Right -of -Way Use Permit. The first term of this Right -of -Way Use Permit shall be for a period of ten (10) years from the date of acceptance as set forth in Section {WSS524961.DOC;1/00006.900000/} 3 32, unless sooner terminated. This Right -of -Way Use Permit shall automatically renew for one (1) additional ten (10) year term. Provided, however, that either party may notify the other of its desire to renegotiate any of the terms set forth herein or of its desire to add to or delete any such terms not later than 180 days prior to expiration of the initial term hereof or any subsequent renewal terms. If either party makes such a request, this Right -of -Way Use Permit shall not renew unless and until the City and Permittee reach agreement on said modification, addition, and/or deletion, and said agreement is approved by ordinance of the City Council. In the event that agreement cannot be reached, this Right -of -Way Use Permit shall terminate at the end of the then current term. Nothing in this Section prevents the parties from reaching agreement on renewal earlier than the time periods indicated. In addition, the Permittee may, upon ninety days notice terminate the Right of Way Use Permit with no further obligation, except as specifically set forth herein, beyond the lease payment for the then current calendar year. Section 6. Non - Exclusive Grant. This Right -of -Way Use Permit shall not in any manner prevent the City from entering into other similar agreements or granting other or further Right - of -Way Use Permits or franchise in, under, on, across, over, through, along or below any of said Public Ways of the City. However, the City shall not permit any such future Permittee or Franchisee to physically interfere with the Permittee's communication Facilities. In the event that such physical interference or disruption occurs, the Community Services Director may assist the Permittee and such subsequent Permittee or Franchisee in resolving the dispute. Further, this Right -of -Way Use Permit shall in no way prevent or prohibit the City from using any of its Public Ways or affect its jurisdiction over them or any part of them, and the City shall retain power to make all necessary changes, relocations, repairs, maintenance, establishment, improvement, dedication of the same as the City may deem fit, including the dedication, establishment, maintenance, and improvement of all new Public Ways, and in compliance with Section 7, below. Section 7. Relocation of Communication Facility. A. The Permittee agrees and covenants, at its sole cost and expense, to protect, support, temporarily disconnect, relocate, or remove from any public way any portion of its communication Facilities when so required by the Community Services Director by reason of traffic conditions, public safety, dedications of new Public Ways and the establishment and improvement thereof, widening and improvement of existing Public Ways, street vacations, freeway construction, change or establishment of street grade, or the construction of any public improvement or structure by any governmental agency acting in a governmental capacity; provided that the Permittee shall in all cases have the privilege to temporarily relocate, in the authorized portion of the same or similar public way upon approval by the Community Services Director, any section of cable or any other facility required to be temporarily disconnected or removed. Upon the reasonable request of the Community Services Director and in order to facilitate the design of City street and right -of -way improvements, the Permittee agrees to, at its sole cost and expense, locate, and if reasonably determined necessary by the City, to excavate { WSS524961.DOC;1 /00006.900000/} 4 and expose portions of its communication Facilities for inspection so that the location of same may be taken into account in the improvement design, PROVIDED that, Permittee shall not be required to excavate and expose it's Facilities unless the Permittee's as-built plans and maps of it's Facilities submitted pursuant to Section 9 of this Right -of -Way Use Permit are reasonably determined by the Community Services Director to be inadequate for purposes of this paragraph. The decision to relocate said Facilities in order to accommodate the City's improvements shall be made by the Community Services Director upon review of the location and construction of the Permittee's Facilities. If the Community Services Director determines that the project necessitates the relocation of the Permittee's then existing Facilities, the City shall: 1. Within a reasonable time, which shall be no less than 30 days, prior to the commencement of such improvement project, provide the Permittee with written notice requiring such relocation. In the event that such relocation requires land use approvals by the City, such notice period shall be extended by an additional 90 days. Provided, however, that in the event an emergency posing a threat to public safety, health or welfare, or in the event of an emergency beyond the control of the City and which will result in severe financial consequences to the City, the City shall give the Permittee written notice as soon as practicable; and 2. Provide the Permittee with copies of information for such improvement project and a proposed location for the Permittee's Facilities so that the Permittee may relocate its Facilities in other Public Ways in order to accommodate such improvement project. 3. The Permittee shall complete relocation of its Facilities at no charge or expense to the City so as to accommodate the improvement project at least 10 days prior to commencement of the project. In the event of an emergency as described herein, the Permittee shall relocate its Facilities within the time period specified by the Community Services Director. The Permittee may, after receipt of written notice requesting a relocation of its Facilities, submit to the City written alternatives to such_ relocation. The City shall evaluate such alternatives and advise the Permittee in writing if one or more of the alternatives is suitable to accommodate the work which would otherwise necessitate relocation of the Facilities. If so requested by the City, the Permittee shall submit additional information to assist the City in making such evaluation. The City shall give each alternative proposed by the Permittee full and fair consideration, within a reasonable time, so as to allow for the relocation work to be performed in a timely manner. In the event the City ultimately determines that there is no other reasonable alternative, the Permittee shall relocate its Facilities as otherwise provided in this Section. { W S S 524961. D O C;1 /00006.900000/} 5 The provisions of this Section shall in no manner preclude or restrict the Permittee from making any arrangements it may deem appropriate when responding to a request for relocation of its Facilities by any person or entity other than the City, where the Facilities to be constructed by said person or entity are not or will not become City - owned, operated or maintained Facilities provided that such arrangements do not unduly delay a City construction project. B. Except as provided in Section 16(E), the Permittee will indemnify, hold harmless, and pay the costs of defending the City against any and all claims, suits, actions, damages, or liabilities for delays on City construction projects caused by or arising out of the failure of the Permittee to relocate its Facilities in a timely manner; provided, that the Permittee shall not be responsible for damages due to delays caused by the City or circumstances beyond the control of the Permittee. C. The parties understand that the relocation of Facilities placed in the right -of -way is partially governed by RCW 35.99, et.al., and to the extent that the provisions of this section are not in compliance with the terms of RCW 35.99 et.al. (or successor statute), the provisions of the statute shall control and the terms of this section shall be amended to be in conformance thereto. Section 8. The Permittee's Maps and Records. After construction is complete, the Permittee shall provide the City with accurate copies of all as -built plans and maps in a form and content prescribed by the Community Services Director. These plans shall be provided at no cost to the City, and shall include hard copies and digital copies in a format specified by the Community Services Director. Section 9. Work in Public Wad During any period of relocation, construction, or maintenance, all surface structures, if any, shall be erected and used in such places and positions within said Public Ways and other public properties so as to interfere as little as possible with the free passage of traffic and the free use of adjoining property. The Permittee shall at all times post and maintain proper barricades and comply with all applicable safety regulations during such period of construction as required by the ordinances of the City or the laws of the State of Washington, including RCW 39.04.180 for the construction of trench safety systems. During the progress of the work, the Permittee shall not unnecessarily obstruct the passage of proper use of the Public Ways, and all work by the Permittee in the area covered by this Permit and as described in this Section shall be performed in accordance with City of Edmonds Public Works Construction Standards and warranted for a period of 1 year. If either the City or the Permittee shall at any time after installation of the Facilities plan to make excavations in area covered by this Permit and as described in this Section, the party planning such excavation shall afford the other, upon receipt of written request to do so, an opportunity to share such an excavation. PROVIDED THAT: { W SS524961.DOC;1 /00006.900000/} 6 A. Such joint use shall not unreasonably delay the work of the party causing the excavation to be made or unreasonably increase its costs; B. Such joint use shall be arranged and accomplished on terms and conditions satisfactory to both parties; and C. Either party may deny such request for safety reasons or if their respective uses of the trenh are incompatible. D. Such joint use shall not necessarily interfere with operation of the communication facility. The joint use provisions of this Section shall apply only to joint use by the City and the Permittee. Nothing in this Section is intended to require the Permittee to afford other similar users the opportunity to share the Permittee's excavations. Section 10. Restoration after Construction. The Permittee shall, after installation, construction, relocation, maintenance, removal, or repair of its communication Facilities within the Public Ways, restore the surface of said Public Ways and any other City -owned property which may be disturbed by the work, to at least the same condition the public way or City -owned property was in immediately prior to any such installation, construction, relocation, maintenance, or repair, reasonable wear and tear excepted. The Public Works Department shall have final approval of the condition of such Public Ways and City -owned property after restoration, all in accordance with the Edmonds City Code and Public Works Construction standards. All survey monuments which are to be disturbed or displaced by such work shall be referenced and restored, as per WAC 332 -120, as the same now exists or may hereafter be amended, and all pertinent federal, state and local standards and specifications. The Permittee agrees to promptly complete all restoration work and to promptly repair any damage caused by such work to the Public Ways or other affected area at its sole cost and expense according to the time and terms specified in the Construction Right -of -Way Use Permit issued by the City all in accordance with the applicable provisions of the Edmonds City Code, as the same now exists or as it may hereafter be amended or superseded. All work and restoration by the Permittee pursuant to this Section shall be performed in accord with City of Edmonds Public Works Construction standards and warranted for a period of 1 years. Section 11. Emergency Work — Right-of-Way Use Permit Waiver. In the event of any emergency in which any of the Permittee's communication Facilities located in, above, or under any public way breaks, are damaged, ceases to provide service, or if the Permittee's construction area is otherwise in such a condition as to immediately endanger the property, life, health, or safety of any individual, the Permittee shall immediately take the proper emergency measures to repair its Facilities, to cure or remedy the dangerous conditions for the protection of property, life, health, or safety of individuals without first applying for and obtaining a Right -of -Way Use Permit as required by this Right -of -Way Use Permit. However, this shall not relieve the Right - of -Way Use Permittee from the requirement of notifying the City of the emergency work and {WSS524961.DOC;1 /00006.900000/} obtaining any Right -of -Way Use Permits necessary for this purpose after the emergency work. The Right -of -Way Use Permittee shall notify the City by telephone immediately upon learning of the emergency and shall apply for all required Right -of -Way Use Permits not later than the second succeeding day during which the Issaquah City Hall is open for business. Section 12. Dangerous Conditions, Authority for City to Abate. Whenever construction, installation, or excavation of the communication Facilities authorized by this Right -of -Way Use Permit has caused or contributed to a condition that appears to substantially impair the lateral support of the adjoining public way, street, or public place, or endangers the public, street utilities, or City -owned property, the Community Services Director may reasonably require the Permittee, at the Permittee's own expense, to take action to protect the public, adjacent public places, City -owned property, streets, utilities, and Public Ways. Such action may include compliance within a prescribed time. In the event that the Permittee fails or refuses to promptly take the actions directed by the City, or fails to fully comply with such directions, or if emergency conditions exist which require immediate action, the City may enter upon the property and take such actions as are necessary to protect the public, the adjacent streets, utilities, Public Ways, to maintain the lateral support thereof, or actions regarded as necessary safety precautions; and the Permittee shall be liable to the City for the reasonable costs thereof. Section 13. Recovery of Costs. The Permittee shall be subject to all Right -of -Way Use Permit fees associated with activities undertaken through the authority granted in this Right -of- Way Use Permit or under the laws of the City. Where the City incurs costs and expenses for review, inspection, or supervision of activities undertaken through the authority granted in this Right -of -Way Use Permit or any ordinances relating to the subject for which a Right -of -Way Use Permit fee is not established, the Permittee shall reimburse the City directly for any and all reasonable costs, after receipt of an itemized bill. In addition to the above, the Permittee shall promptly reimburse the City for any and all reasonable costs the City incurs in response to any emergency involving the Permittee's communication Facilities, after receipt of an itemized bill. The time of City employees shall be charged at their respective rate of salary, including overtime if applicable, plus benefits and an overhead charge of six percent (6 %) of salary. All billings will be itemized as to specifically identify the costs and expenses for each project for which the City claims reimbursement. The billing may be on an annual basis, but the City shall provide the Right -of -Way Use Permit with the City's itemization of costs at the conclusion of each project for information purposes. Section 14. Annual Compensation for Use of the Right -of --way. A. In consideration for the use of the Right -of -Way, Permittee. shall commit to providing an annual payment for each approved Facility shown on Exhibit A. The amount of the { W S S 524961. DOC;1 /00006.900000/} annual payment for the partial year (prorated) and for calendar year 2003 shall be as follows: 1. Separate support structure (such as monopole or lattice tower) erected solely for wireless antennas, equipment cabinets are in the Right -of -Way, annual payment is Five Thousand Dollars ($5,000). 2. Antennas placed on an existing structure or replacement of an existing structure, equipment cabinets are in the Right -of -Way, annual payment is Three Thousand Dollars ($3,000). 3. Antennas placed on an existing structure or replacement of an existing structure, equipment cabinets are not within the Right -of -Way, annual compensation is Two Thousand Dollars ($2,000). Four said payments shall be made as follows: the first prorated payment prior to proceeding with pole attachments and annual payments thereafter on or before January 15th of each year. B. For the purposes of this section, "existing support structures" mean existing utility poles, light poles or other approved structures that exist in the Right -of -Way that can be used to support wireless antennas. C. For the purpose of this section, "replacement poles" mean replacing an existing support structure with a like structure that is either taller and/or stronger than the existing structure for purposes of placement of wireless antennas. D. The compensation provided for in Subsection A shall be adjusted annually each year of the first ten year term by an increase of five (5) percent. The parties shall meet in the tenth year to readjust the provisions of this section and Section 17 Insurance to establish levels of compensation, annual adjustments thereto and insurance consistent with that charged by comparable jurisdictions. E. In the event that the Facilities of the Permittee are out of service due to a relocation under the provisions of Section 7 for the convenience of the City, a credit equal to the prorated value of the time the Facility or Facilities are out of service shall be given on the next years compensation. Section 15. Grant Fee. As additional consideration for the right and privileges granted hereunder, the Permittee agrees to pay, at the time of acceptance of this Right -of -Way Use Permit, a one time grant fee of Five Hundred Dollars ($500.00) to defray the City's legal and administrative costs and expenses associated with negotiating and approving this Right -of -Way Use Permit, provided that such expenses shall not be included in the reimbursement provisions set forth in Section 14 of this Right -of -Way Use Permit. { WSS524961. DOC;1 /00006.900000/1 9 Section 16. Indemnification and Waiver. A. Permittee hereby releases, covenants not to bring suit and agrees to indemnify, defend and hold harmless the City, its officers, employees, agents and representatives from any and all claims, costs, judgments, awards or liability to any person arising from injury, sickness, or death of any person or damage to property: 1. For which the negligent acts or omissions of Permittee, its agents, servants, officers or employees in performing the activities authorized by this Right -of -Way Use Permit are the proximate cause; 2. By virtue of the Permittee's exercise of the rights granted herein; 3. By virtue of the City's permitting Permittee's use of the City's Public Ways or other public property; 4. Based on the City's inspection or lack of inspection of work performed by Permittee, its agents and servants, officers or employees in connection with work authorized on the Public Ways or property over which the City has control pursuant to this Right -of -Way Use Permit or pursuant to any other Right -of -Way Use Permit or approval issued in connection with this Right -of -Way Use Permit; 5. Arising as a result of the negligent acts or omissions of Permittee, its agents, servants, officers or employees in barricading, instituting trench safety systems or providing other adequate warnings of any excavation, construction, or work upon the Public Ways, in any public way, or other public place in performance of work or services permitted under this Right -of -Way Use Permit. B. The provisions of Subsection A of this Section shall apply to claims by Permittee's own employees and the employees of the Permittee's agents, representatives, contractors, and subcontractors to which Permittee might otherwise be immune under Title 51 RCW. This waiver of immunity under Title 51 RCW has been mutually negotiated by the parties hereto, and Permittee acknowledges that the City would not enter into this Right -of -Way Use Permit without Permittee's waiver thereof C. Inspection or acceptance by the City of any work performed by the Permittee at the time of completion of construction shall not be grounds for avoidance of any of these covenants of indemnification. Provided that Permittee has been given prompt written notice by the City of any such claim, said indemnification obligations shall extend to claims which are not reduced to a suit and any claims which may be compromised with Permittee's consent prior to the culmination of any litigation or the institution of any litigation. The City has the right to defend or participate in the defense of any such claim, and has the right to approve any { WSS524961.DOC;1 /00006.900000/} 10 settlement or other compromise of any such claim, provided that Permittee shall not be liable for such settlement or other compromise unless it has consented thereto. D. In the event that Permittee refuses the tender of defense in any suit or any claim, said tender having been made pursuant to this Section, and said refusal is subsequently determined by a court having jurisdiction (or such other tribunal that the parties shall agree to the matter), to have been a wrongful refusal on the part of the Permittee, then Permittee shall pay all of the City's costs for defense of the action, including all reasonable expert witness fees, reasonable attorney's fees , the reasonable costs of the City, and reasonable fees of recovering under this Subsection. E. The obligations of Permittee under the indemnification provisions of this Section shall apply regardless of whether liability for damages arising out of bodily injury to persons or damages to property were caused or contributed to by the City, its officers, agents, employees or contractors except to the extent that such claims, actions, damages, costs, expenses, and attorneys fees were caused by the negligence or any willful or malicious action on the part of the City, its officers, agents, employees or contractors. In the event that a court of competent jurisdiction determines that this Right -of -Way Use Permit is subject to the provisions RCW 4.24.115, the parties agree that the indemnity provisions hereunder shall be deemed amended to conform to said statute and liability shall be allocated as provided therein. F. Notwithstanding any other provisions of this Section, Permittee assumes the risk of damage to its communication Facilities located in the Public Ways and upon City -owned property from such activities conducted by the City, its officers, agents, employees and contractors, except to the extent any such damage or destruction is caused by or arises from the negligence or any willful or malicious action on the part of the City, its officers, agents, employees or contractors. Permittee releases and waives any and all such claims against the City, its officers, agents, employees or contractors. Permittee further agrees to indemnify, hold harmless and defend the City against any claims for damages, including, but not limited to, business interruption damages and lost profits, brought by or under users of Permittee's Facilities as the result of any interruption of service due to damage or destruction of Permittee's Facilities caused by or arising out of activities conducted by the City, its officers, agents, employees or contractors, except to the extent any such damage or destruction is caused by or arises from the negligence or any willful or malicious actions on the part of the City, its officers, agents, employees or contractors. Section 17. Insurance. The Permittee shall procure and maintain insurance against claims for injuries to persons or damages to property which may arise from or in connection with the exercise of the rights, privileges and authority granted hereunder to the Permittee, its agents, representatives or employees. The Permittee shall provide to the City an insurance certificate naming the City as an additional insured for its inspection prior to the commencement of any work or installation of any Facilities pursuant to this Right -of -Way Use Permit. Such insurance certificate shall evidence: ( WSS524961.DOC;1/00006.900000/) 11 A. Comprehensive general liability insurance, written on an occurrence basis, including contractual liability coverage, with limits not less than: (1) $3,000,000.00 for bodily injury or death to each person; and (2) $3,000,000.00 for property damage resulting from any one accident. B. Automobile liability for owned, non -owned and hired vehicles with a limit of $3,000,000.00 for each person and $3,000,000.00 for each accident. C. Worker's compensation within statutory limits and employer's liability insurance with limits of not less than $1,000,000.00. The liability insurance policies required by this Section shall be maintained by the Permittee throughout the, term of this Right -of -Way Use Permit, and such other period of time during which the Permittee is operating without a Right -of -Way Use Permit hereunder, or is engaged in the removal of its Communication System. Payment of deductibles and self - insured retentions shall be the sole responsibility of the Permittee. The insurance certificate required by this Section shall contain a clause stating that the coverage shall apply separately to each insured against whom a claim is made or suit is brought, except with respect to the limits of the insurer's liability. The Permittee's insurance shall be primary insurance with respect to the City. Any insurance maintained by the City, its officers, officials, employees, consultants, agents, and volunteers shall be in excess of the Permittee's insurance and shall not contribute with it. In addition to the coverage requirements set forth in this Section, the insurance certificate required by this Section shall contain language which provides that the policy may not be canceled, reduced in coverage, nor the intention not to renew be stated until at least 30 days after receipt by the City of written notice of the same via U.S. mail. Within 15 days after receipt by the City of said notice, and in no event later than 5 days prior to said cancellation or non- renewal, the shall obtain and furnish to the City replacement insurance certificate(s) meeting the requirements of this Section Section 18. Abandonment and Removal of the Permittee's Communication Facilities. Upon the expiration, termination, or revocation of the rights granted under this Right -of -Way Use Permit, the Permittee shall remove all of its communications Facilities from the Public Ways of the City within 90 days of receiving notice from the Community Services Director. Provided, however, that the City may permit the Permittee's improvements to be abandoned and replaced in such a manner as the parties shall agree, subsequent always to the City's standard construction requirements for Right -of -Way use. Upon permanent abandonment, and Permittee's agreement to transfer ownership of the communication Facilities to the City, the Permittee shall submit to the City a proposal and instruments for transferring ownership to the City. Any such Facilities which are not permitted to be abandoned in place which are not removed within ninety (90) days of receipt of said notice shall automatically become the property of the City. Provided, however, { W SS524961.DOC;1 /00006.900000/} 12 that nothing contained within this Section shall prevent the City from compelling the Permittee to remove any such Facilities through judicial action when the City has not permitted the Permittee to abandon said Facilities in place. Section 19. Construction Bond. Before undertaking any of the work, installation, improvements, construction, repair, ' relocation or maintenance authorized by this Right -of -Way Use Permit, the Permittee shall furnish a street repair or sidewalk bond written by a corporate surety acceptable to the City equal to at least 125% of the estimated cost of restoring the Public Ways of the City to the pre - construction condition required by Section 11 of this Right -of -Way Use Permit. Said bond shall be required to remain full force until 60 days after completion of the construction of Permittee's communication Facilities and other improvements from the Public Ways of the City, and said bond, or separate bond acceptable to the City, shall warrant all such restoration work for a period of two years. In the event that a bond issued to meet the requirements of this Section is canceled by the surety, after proper notice and pursuant to the terms of said bond, Permittee shall, prior to expiration of said bond, be responsible for obtaining a replacement bond which complies with the terms of this Section. Section 20. Modification. The City and the Permittee hereby reserve the right to alter, amend or modify the terms and conditions of this Right -of -Way Use Permit upon the written agreement of both parties to such alteration, amendment or modification. Said modifications shall be approved by the City by ordinance and accepted by the Permittee consistent with Section 32 hereof. Section 21. Forfeiture and Revocation. If the Permittee willfully violates or fails to comply with any of the material provisions of this Right -of -Way Use Permit, or through willful misconduct or gross negligence fails to heed or comply with any notice given the Right -of -Way Use Permittee by the City under the provisions of this Right -of -Way Use Permit, then the Permittee shall, at the election of the City Council, forfeit all rights conferred hereunder and this Right -of -Way Use Permit may be revoked, terminated or annulled by the City Council after a hearing held upon reasonable written notice to Permittee. The City Council may decide, after consideration of the reasons for the Permittee's failure to comply with the Right -of -Way Use Permit, to allow the Permittee additional time to cure before such termination or revocation. The City may elect, in lieu of the above, and without prejudice to any of its other legal rights and remedies, to obtain an order from the superior court having jurisdiction compelling the Permittee to comply with the provisions of this Right -of -Way Use Permit and to recover reasonable and documented damages and costs incurred by the City by reason of the Permittee's failure to comply. Section 22. City Ordinances and Regulations. Nothing herein shall be deemed to direct or restrict the City's ability to adopt and enforce all necessary and appropriate ordinances regulating the performance of the conditions of this Right -of -Way Use Permit, including any valid ordinance made in the exercise of its police powers in the interest of public safety and for the welfare of the public. The City shall have the authority at all times to control by appropriate regulations the locations, elevation, manner or construction and maintenance of any Facilities by { WSS524961.DOC;1 /00006.900000/} 13 the Permittee, and the Permittee shall promptly conform with all such regulations, unless compliance would cause the Permittee to violate other requirements of the law. Section 23. Survival. All of the provisions, conditions, and requirements of this Right - of -Way Use Permit shall be in addition to any and all other obligations and liabilities the Permittee may have to the City at common law, by statute, or by contract. The provisions, conditions, and requirements of Sections 7, Relocation of Communication System; 9, Work in Public Ways; 10, Restoration after Construction; 12, Dangerous Conditions, Authority for City to Abate; 16, Indemnification and Waiver, 17, Insurance, and 18, Abandonment and Removal of the Permittee's Communication Facilities, shall survive the expiration or termination of this Right -of -Way Use Permit, and any renewals or extensions thereof and remain effective until such time as the Permittee removes its communication Facilities from the Public Ways, transfers ownership of said Facilities to a third party, or abandons said System in place, all as provided herein. All of the provisions, conditions, regulations and requirements contained in this Right - of -Way Use Permit shall further be binding upon the heirs, successors, executors, administrators, legal representatives and assigns of the Permittee and all privileges, as well as all obligations and liabilities of the Permittee shall inure to its heirs, successors, and assigns equally as if they were specifically mentioned wherever the Permittee is named herein. Section 24. Severability. In any section, sentence, clause, or phrase of this Right -of -Way Use Permit should be held to be invalid or unconstitutional by a court of competent jurisdiction, such invalidity or unconstitutionality shall not affect the validity or constitutionality of any other section, sentence, clause, or phrase of this Right -of -Way Use Permit. Section 25. Assignment. This agreement may not be assigned or transferred without the written approval of the City, which approval shall not be unreasonably withheld or delayed, except that the Permittee may freely assign this Right -of -Way Use Permit in whole or part to a parent, subsidiary, or affiliated corporation or as part of any corporate financing, reorganization or refinancing. In the case of transfer or assignment as security by mortgage or other security instrument in whole or in part to secure indebtedness, such consent shall not be required unless and until the secured party elects to realize upon the collateral. The Permittee shall provide prompt, written notice to the City of any such assignment. Section 26. Notice. Any notice or information required or permitted to be given to the parties under this Right -of -Way Use Permit may be sent to the following addresses unless otherwise specified: City City of Edmonds Director of Community Services 121 5th Avenue N. Edmonds, WA 98020 425 771 -0220 Fax: 425- 771 -0221 { WSS524961.DOC;1 /00006.900000/} 14 Permittee: VoiceStream PCS III Corporation 12920 SE 38th Street Bellevue, WA 98006 Attn: Leasing Administrator With Copies to: VoiceStream PCS III Corporation 19807 North Creek Parkway North Bothell, WA 98011 Attn: Lease Administrator Notice shall be deemed given upon receipt in the case of personal delivery, three days after deposit in the United States Mail in the case of regular mail, or the next day in the case of overnight delivery. Section 27. Entire Right-of-Way Use Permit. This Right -of -Way Use Permit constitutes the entire understanding and agreement between the parties as to the subject matter herein and no other agreements or understandings, written or otherwise, shall be binding upon the parties upon approval and acceptance of this Right -of -Way Use Permit. Section 28. Attorney's Fees. If any suit or other action is instituted in connection with any controversy arising under this Right -of -Way Use Permit, the prevailing party shall be entitled to recover all of its costs and expenses including such sum as the court may judge reasonable for attorney's fees, including fees upon appeal of any judgement or ruling. Section 29. Non - waiver. Failure of the City to declare any such breach or default immediately upon the occurrence thereof, or delay in taking any action in connection therewith, shall not waive such breach or default, but the City shall have the right to declare any such breach or default at any time. Failure of the City to declare one breach or default does not act as a waiver of the City's right to declare another breach or default. Section 30. Governing LawNenue. This Right -of -Way Use Permit shall be governed by and construed in accordance with the laws of the State of Washington. The venue and jurisdiction over any dispute related to this Right -of -Way Use Permit shall be with the Snohomish County Superior Court. Section 31. Acceptance. Within 60 days after the passage and approval of this ordinance, this Right -of -Way Use Permit may be accepted by Permittee by its filing with the City Clerk an unconditional written acceptance thereof. Failure of the Permittee to so accept this Right -of -Way Use Permit within said period of time shall be deemed a rejection thereof, and the rights and privileges herein granted shall, after the expiration of the 60 day period, absolutely cease and determine, unless the time period is extended by ordinance duly passed for that purpose. Section 32. Effective Date. This ordinance, being an exercise of a power specifically delegated to the City legislative body, is not subject to referendum, and shall take effect 5 days after the passage and publication of an approved summary thereof consisting of the title. { WS S524961.DOC;1 /00006.900000/} 15 . CITY OF EDMONDS MAVbR. ORY HAAKENSON ATTEST /AUTHENTIC/A�TED: CITY CLERK SANDRA S. CHASE APPROVED AS TO FROM: OFFICE OF Y A RNE By: W. SCOTT SNYDER Ili FILED WITH THE CITY CLERK: 09/13/2002 PASSED BY THE CITY COUNCIL: 09/16/2002 SIGNED BY THE MAYOR: 09/18/2002 PUBLISHED: 09/22/2002 EFFECTIVE DATE: 09/27/2002 ORDINANCE NO.: 3418 { WSS524961.DOC;1/00006.900000/1 - 16 - republished complete ordinance 10/23/02 SUMMARY ORDINANCE NO. 3418 of the City of Edmonds, Washington On the 16th day of September, 2002, the City Council of the City of Edmonds, passed Ordinance No. 3418. A summary of the content of said ordinance, consisting of the title, provides as follows: AN ORDINANCE OF THE CITY OF EDMONDS, WASHINGTON, GRANTING TO VOICESTREAM PCS III CORPORATION, A RIGHT -OF -WAY USE PERMIT, TO INSTALL, OPERATE, AND MAINTAIN A MONOPOLE WITHIN A CERTAIN DESIGNATED PUBLIC RIGHT -OF -WAY OF THE CITY OF EDMONDS, WASHINGTON, PRESCRIBING CERTAIN RIGHTS, DUTIES, TERMS, AND CONDITIONS WITH RESPECT THERETO, AND ESTABLISHING AN EFFECTIVE DATE. The full text of this Ordinance will be mailed upon request. DATED this 17th day of September, 2002. SANDRA S. CHASE, CITY CLERK { WSS524961.DOC;1/00006.900000/} 17 EDMONDS WAY EXISTMG OVERHEAD LINE j— EXISTW3 UTILITY VAULT SNO PUD TO REPLACE EXISTUG 45'•0" POLE UNTH 100'•0• STEEL MONOPOI -E AND RELOCATE EXISTMG OVERHEAD LINE f — EXISTNG POWER LINES. TRANSFORI"@R AND d CotV1UNICATION CABLES. TOUTER SHALL BE PAINTED TO HATCH EXISTPG WOOD POLES. 1 111 �✓ REFER TO A -4 FOR ANTENNA BOOM LAYOUT 1 • EXLSTOr, ..GRAVEL ' �' .. ACCESS 4•6• RIGID PVC CONDUITS DIRECT BURIED CAU ANTENNA CABLES. REFER TO E -2 FOR DETAILS ' EXISTNG HEDGES, CASPHALT PARKNG AREA' TYP. G.',®r � $ .•. • • , ' . ••' .. � •11'1 ' . ;�� Y. Cs�r 4111�11111�:1111 InMn1IIW111Lilluf1111� '1111N11�': T I 1eit111Wl1t _ nwumuu�unnun uuunw _ � "- -- -�g�vu umtluntnunnunnmuun� —. =, •:a• �., �' f —_ n811n111�n111 \nI1t�11111�11��- a_��,- �� ®� }ti:} M _ ,s - 1 Q PROPOSED SITE PLAN NOTES: 1. CONTRACTOR TO CONTACT ALL UTILITIES FOR LOCATION OF UNDERGROUND SERVICES. SERVICE LOCATIONS TO BE CONFIRMED PRIOR TO CONSTRUCTION. 1, CONTRACTOR SHALL VERIFY ALL EXISTING DII'IENSI —S, AND CONDITIONS PRIOR TO Co'"ENCIN'a ANY WORK ALL DIMENSIONS OF EXISTING CONSTRUCTION SHOWN ON THE DRAWINGS ARE INTENDED AS GUIDELINES ONLY AND FYL5T BE VERIFIED. 3. ALL EXISTfWG ACTIVE SEWER WATER GAS. ELECTRIC, AND OTHER UTILITIES WHERE ENCOUNTERED IN THE WORK. SHALL BE PROTECTED AT ALL TIMES. AND WHERE REQUIRED FOR T14E PROPER EXECUTION OF THE wolw, SHALL N Be RELOCATED AS DIRECTED BY ENGINEERS (AT CONTRACTOR'S EXPENSE). EXTREME CAUTION SHOULD BE USED BY THE CONTRACTOR WJEN EXCAVATING OR PIER ORILLPG AROUND OR NEAR UTILITIES. THE WORK6G CREW SHALL HAVE PRIOR SAFETY TRAINING THAT INCLUDES BUT 15 NOT LIMITED TO, AI FALL PROTECTION BI CONFINED SPACE C) ELECTRICAL SAFETY D) TRENCHING L EXCAVATION. 4, IF NECESSARY. RUBBISH, STViPS, DEBRIS, STICKS, STONES AND OTHER REFUSE SHALL BE REMOVED FROM THE SITE MID DISPOSED OF LEGALLY. S. ALL EXISTING INACTIVE SELLER WATER GAS. ELECTRIC AND OTHER UTILITIES. W41CH INTERFERE WITH THE EXECUTION OF THE WORK SMALL BE REMOVED AND /OR CAPPED, PLUGGED OR OTHERWISE DISCONTINUED AT POINTS WHICH WILL NOT INTERFERE WITH THE EXECUTION OF THE UIDRY SUBJECT TO THE APPROVAL OF ENGINEERING, OWNER AND /OR LOCAL UTILITIES (AT CONTRACTOR'S EXPENSE). •. THE MONOPOLE AND ANTEINA 1Y7WTp NAVE BEEN DE6G4ED !ST OTNEM WICESTREAM LULL 6UPPLr THE MONOPOLE. ANTENNA K7WT6 AND ANTEN4A6 FOR INSTALLATION 15V ONO PUD. `L l' S �.J \ I 1 � 1 \ EXHIBIT A voku M/ R L L f I R 19807 NORTH CREEK PARKWAY N SUITE 101 BOTHELL WA 98011 PHONE (425) 378 -4000 4 J ENGINEERING -201 - R16B6 - 66th Ave. Svray. BL. V39 1XL Canada TEL (604)514 -6432 FAX. (604) 514 -6431 TOLL FREE, I- 811.345 -4045 EMAIL, cuU�Lrpeegcom mnaa.TRKENGCOm PROJECT NJ, ensae D24UN BY, CAF. CJNEO•.ED en Ran CAO FlIE, onso3a3a THE RNF'OTd9ATION CONTAINED IN THIS SET OF DOCUtENTS 15 PfmPR1ETARY BT NATURE ANY USE OR DISCLOSURE OTTER THAN TWAT UNICH RELATES TO THE CLIENT NAMED 6 STRICTLY PROHIBITED. ANE 6EAL NOV EIV E G [ V 2001 I PERMIT EDMONDS WAY / SNO PUD / 5EF2aGHAUER lSE1632A) 9126 EDMONDS WAY EDMONDS, WA 98020 BEET TRIO pROPOSED SITE PLAN 6HEET NrleeR AAA. Page 1 of 1 RCW 4.24.115 Validity of agreement to indemnify against liability for negligence relative to construction, alteration, improvement, etc., of structure or improvement attached to real estate. A covenant, promise, agreement or understanding in, or in connection with or collateral to, a contract or agreement relative to the construction, alteration, repair, addition to, subtraction from, improvement to, or maintenance of, any building, highway, road, railroad, excavation, or other structure, project, development, or improvement attached to real estate, including moving and demolition in connection therewith, purporting to indemnify against liability for damages arising out of bodily injury to persons or damage to property: (1) Caused by or resulting from the sole negligence of the indemnitee, his agents or employees is against public policy and is void and unenforceable; (2) Caused by or resulting from the concurrent negligence of (a) the indemnitee or the indemnitee's agents or employees, and (b) the indemnitor or the indemnitor's agents or employees, is valid and enforceable only to the extent of the indemnitor's negligence and only if the agreement specifically and expressly provides therefor, and may waive the indemnitor's immunity under industrial insurance, Title 51 RCW, only if the agreement specifically and expressly provides therefor and the waiver was mutually negotiated by the parties. This subsection applies to agreements entered into after June 11, 1986. [1986 c 305 601; 1967 ex.s. c 46 2.1 NOTES: Preamble -- Report to legislature -- Severability - -1986 c 305: See notes following RCW 4.16.160. Adopted by Reference Ordinance # 5-ZY on City Clerk http: / /search.mrsc. org /nxtlgateway. dll /rcw /rcw%20 %20 %204 %20 %20title /rcw%2O ° /`20 %... 9/27/2002 Page 1 of 1 RCW 35A.47.040 Franchises and permits -- Streets and public ways. Every code city shall have authority to permit and regulate under such restrictions and conditions as it may set by charter or ordinance and to grant nonexclusive franchises for the use of public streets, bridges or other public ways, structures or places above or below the surface of the ground for railroads and other routes and facilities for public conveyances, for poles, conduits, tunnels, towers and structures, pipes and wires and appurtenances thereof for transmission and distribution of electrical energy, signals and other methods of communication, for gas, steam and liquid fuels, for water, sewer and other private and publicly owned and operated facilities for public service. The power hereby granted shall be in addition to the franchise authority granted by general law to cities. No ordinance or resolution granting any franchise in a code city for any purpose shall be adopted or passed by the city's legislative body on the day of its introduction nor for five days thereafter, nor at any other than a regular meeting nor without first being submitted to the city attorney, nor without having been granted by the approving vote of at least a majority of the entire legislative body, nor without being published at least once in a newspaper of general circulation in the city before becoming effective. The city council may require a bond in a reasonable amount for any person or corporation obtaining a franchise from the city conditioned upon the faithful performance of the conditions and terms of the franchise and providing a recovery on the bond in case of failure to perform the terms and conditions of the franchise. A code city may exercise the authority hereby granted, notwithstanding a contrary limitation of any preexisting charter provision. [1967 ex.s. c 119 35A.47.040.] http: // search. mrsc .org /nxtlgateway. dll /rcw /rcw %20 %203 5a %2Otitle /rcw %20 %203 5a. %20... 9/27/2002 Construction estatements and continuations, and not as new enactments. 1965 c 7 § 35.98.010.] 35.98.020 Title, chapter, section headings not part of law. Title headings, chapter headings, and section or subsection headings, as used in this title do not constitute any part of the law. [1965 c 7 § 35.98.020.] 35.98.030 Invalidity of part of title not to affect nainder. If any provision, section, or chapter of this title its application to any person or circumstance is held alid, the remainder of the provision, section, chapter, or or the application thereof to other persons or circum- ices is not affected. [1965 c 7 § 35.98.030.] 35.98.040 Repeals and saving. See 1965 c 7 § n Ain 35.98.050 Emergency -1965 c 7. This act is neces- ary for the immediate preservation of the public peace, .ealth and safety, the support of the state government and its xisting institutions and shall take effect immediately. [1965 J § 35.98.050.1 Chapter 35.99 UUMMUNICATIONS, CABLE TELEVISION SERVICE —USE OF RIGHT OF WAY I.010 Definitions. W20 Permits for use of right of way. 1.030 Master, use permits— Injunctive relief — Notice— Service providers' duties. '.040 Local regulations, ordinances — Limitations. .050 Personal wireless services— Limitations on moratoria — Dispute resolution. .060 Relocation of facilities — Notice — Reimbursement. .070 Additional ducts or conduits —City or town may require. .080 Existing franchises or contracts not preempted. ,. 35.99.010 Definitions. The definitions in this section )ly throughout this chapter unless the context clearly uires otherwise. (1) "Cable television service" means the one -way Ismission to subscribers of video programming and other gramming service and subscriber interaction, if any, that equired for the selection or use of the video programming )ther programming service. (2) "Facilities" means all of the plant, equipment, lures, appurtenances, antennas, and other facilities essary to furnish and deliver telecommunications services cable television services, including but not limited to -s with crossarms, poles without crossarms, wires, lines, duits, cables, communication and signal lines and Pment, braces, guys, anchors, vaults, and all attachments, �genances, and appliances necessary or incidental to the ribution and use of telecommunications services and e television services. (3) "Master permit" means the agreement in whatever i whereby a city or town may grant general permission service provider to enter, use, and occupy the right of for the purpose of locating facilities. This definition is 35.98.010 not intended to limit, alter, or change the extent of the existing authority of a city or town to require a franchise nor does it change the status of a service provider asserting an existing statewide grant based on a predecessor telephone or telegraph company's existence at the time of the adoption of the Washington state Constitution to occupy the right of way. For the purposes of this subsection, a franchise, except for a cable television franchise, is a master permit. A master permit does not include cable television franchises. (4) "Personal wireless services" means commercial mobile services, unlicensed wireless services, and common carrier wireless exchange access services, as defined by federal laws and regulations. (5) 'Right of way" means land acquired or dedicated for public roads and streets, but does not include: (a) State highways; (b) Land dedicated for roads, streets, and highways not opened and not improved for motor vehicle use by the public; (c) Structures, including poles and conduits, located within the right of way; (d) Federally granted trust lands or forest board trust lands; (e) Lands owned or managed by the state parks and recreation commission; or (f) Federally granted railroad rights of way acquired under 43 U.S.C. Sec. 912 and related provisions of federal law that are not open for motor vehicle use. (6) "Service provider" means every corporation, compa- ny, association, joint stock association, firm, partnership, person, city, or town owning, operating, or managing any facilities used to provide and providing telecommunications or cable television service for hire, sale, or resale to the general public. Service provider includes the legal successor to any such corporation, company, association, joint stock association, firm, partnership, person, city, or town. (7) "Telecommunications service" means the transmis- sion of information by wire, radio, optical cable, electromag- netic, or other similar means for hire, sale, or resale to the general public. For the purpose of this subsection, "informa- tion" means knowledge or intelligence represented by any form of writing, signs, signals, pictures, sounds, or any other symbols. For the purpose of this chapter, telecommunica- tions service excludes the over - the -air transmission of broadcast television or broadcast radio signals. (8) "Use permit" means the authorization in whatever form whereby a city or town may grant permission to a service provider to enter and use the specified right of way for the purpose of installing, maintaining, repairing, or removing identified facilities. [2000 c 83 § 1.] 35.99.020 Permits for use of right of way. A city or town may grant, issue, or deny permits for the use of the right of way by a service provider for installing, maintaining, repairing, or removing facilities for telecommunications services or cable television services pursuant to ordinances, consistent with chapter 83, Laws of 2000. [2000 c 83 § 2.] 35.99.030 Master, use permits— Injunctive relief - Notice— Service providers' duties. (1) Cities and towns may require a service provider to obtain a master permit. A [Title 35 RCW —page 315] city or town may request, but not require, that a service provider with an existing statewide grant to occupy the right of way obtain a master permit for wireline facilities. (a) The procedures for the approval of a master permit and the requirements for a complete application for a master permit shall be available in written form. (b) Where a city or town requires a master permit, the city or town shall act upon a complete application within one hundred twenty days from the date a service provider files the complete application for the master permit to use the right of way, except: (i) With the agreement of the applicant; or (ii) Where the master permit requires action of the legislative body of the city or town and such action cannot reasonably be obtained within the one hundred twenty day period. (2) A city or town may require that a service provider obtain a use permit. A city or town must act on a request for a use permit by a service provider within thirty days of receipt of a completed application, unless a service provider consents to a different time period or the service provider has not obtained a master permit requested by the city or town. (a) For the purpose of this section, "act" means that the city makes the decision to grant, condition, or deny the use permit, which may be subject to administrative appeal, or notifies the applicant in writing of the amount of time that will be required to make the decision and the reasons for this time period. (b) Requirements otherwise applicable to holders of master permits shall be deemed satisfied by a holder of a cable franchise in good standing. (c) Where the master permit does not contain procedures to expedite approvals and the service provider requires action in less than thirty days, the service provider shall advise the city or town in writing of the reasons why a shortened time period is necessary and the time period within which action by the city or town is requested. The city or town shall reasonably cooperate to meet the request where practicable. (d) A city or town may not deny a use permit to a service provider with an existing statewide grant to occupy the right of way for wireline facilities on the basis of failure to obtain a master permit. (3) The reasons for a denial of a master permit shall be supported by substantial evidence contained in a written record. A service provider adversely affected by the final action denying a master permit, or by an unreasonable failure to act on a master permit as set forth in subsection (1) of this section, may commence an action within thirty days to seek relief, which shall be limited to injunctive relief. (4) A service provider adversely affected by the final action denying a use permit may commence an action within thirty days to seek relief, which shall be limited to injunctive relief. In any appeal of the final action denying a use permit, the standard for review and burden of proof shall be as set forth in RCW 36.70C.130. (5) A city or town shall: (a) In order to facilitate the scheduling and coordination of work in the right of way, provide as much advance notice as reasonable of plans to open the right of way to those service providers who are current users of the right of way or who have filed notice with the clerk of the cisy q, within the past twelve months of their intent rt; ., facilities in the city or town. A city is not liable foT' es for failure to provide this notice. Where the failed to provide notice of plans to open the.nga consistent with this subsection, a city may not de, , permit to a service provider on the basis that provider failed to coordinate with another project. (b) Have the authority to require that facilities,:;f, installed and maintained within the right of way in manner and at such points so as not to inconvenienc:_ , public use of the right of way or to adversely affec,r ,.y4 public health, safety, and welfare. (6) A service provider shall: (a) Obtain all permits required by the city or toA;rt iw. the installation, maintenance, repair, or removal of faci[ t in the right of way; (b) Comply with applicable ordinances, constructictf codes, regulations, and standards subject to verification i ,1; the city or town of such compliance; (c) Cooperate with the city or town in ensuring facilities are installed, maintained, repaired, Land remover within the right of way in such a manner and at such poie,.s so as not to inconvenience the public use of the right of wag or to adversely affect the public health, safety, and welfare; (d) Provide information and plans as reasonably neces, sary to enable a city or town to comply with subsection (5) of this section, including, when notified by the city or town, the provision of advance planning information pursuant to the procedures established by the city or town; (e) Obtain the written approval of the facility or structure owner, if the service provider does not own it, prior to attaching to or otherwise using a facility or structure in the right of way; (f) Construct, install, operate, and maintain its facilities at its expense; and (g) Comply with applicable federal and state safety laws and standards. (7) Nothing in this section shall be construed as: (a) Creating a new duty upon city [cities] or towns to be responsible for construction of facilities for service providers or to modify the right of way to accommodate such facili- ties; (b) Creating, expanding, or extending any liability of a city or town to any third -party user of facilities or third -party beneficiary; or (c) Limiting the right of a city or town to require an indemnification agreement as a condition of a service provider's facilities occupying the right of way. (8) Nothing in this section creates, modifies, expands, or diminishes a priority of use of the right of way by a service provider or other utility, either in relation to other service providers or in relation to other users of the right of way for other purposes. [2000 c 83 § 3.] 35.99.040 Local regulations, ordinances Limitations. (1) A city or town shall not adopt or enforce regulations or ordinances specifically relating to use of the right of way by a service provider that: [Title 35 RCW —page 316] (2002 Ed) Telecommunications, Cable Television Service —Use of Right of Way 35.99.040 (a) Impose requirements that regulate the services or business operations of the service provider, except where otherwise authorized in state or federal law; (b) Conflict with federal or state laws, rules, or regula- tions that specifically apply to the design, construction, and operation of facilities or with federal or state worker safety or public safety laws, rules, or regulations; (c) Regulate the services provided based upon the content or kind of signals that are carried or are capable of being carried over the facilities, except where otherwise authorized in state or federal law; or (d) Unreasonably deny the use of the right of way by a service provider for installing, maintaining, repairing, or removing facilities for telecommunications services or cable television services. ;. (2) Nothing in this chapter, including but not limited to the provisions of subsection (1)(d) of this section, limits the authority of a city or town to regulate the placement of facilities through its local zoning or police power, if the regulations do not otherwise: x,(a) Prohibit the placement of all wireless or of all wireline facilities within the city or town; (b) Prohibit the placement of all wireless or of all wireline facilities within city or town rights of way, unless the'city or town is less than five square miles in size and has no commercial areas, in which case the city or town may make available land other- than city or town rights of way for the:placement of wireless facilities; or (c) Violate section 253 of the telecommunications act of 1996, P.L. 104 -104 (110 Stat. 56). J3) This section does not amend, limit, repeal, or otherwise modify the authority of cities or towns to regulate cable, television services pursuant to federal law. [2000 c 83 § 4•]„ 35.99.050 Personal wireless services — Limitations on moratoria— Dispute resolution. A city or town shall not place or extend a moratorium on the acceptance and Processing of applications, permitting, construction, mainte- nance, repair, replacement, extension, operation, or use of any facilities for personal wireless services, except as consistent with the guidelines for facilities siting implemen- tation ,e as agreed to on August 5, 1998, by the federal communications commission's local and state government advisory committee, the cellular telecommunications industry association, the personal communications industry associa- tion, and the American mobile telecommunications associa- lion. 'Any city or town implementing such a moratorium shall, at the request of a service provider impacted by the moratorium, participate with the service provider in the informal dispute resolution process included with the guidelines for facilities siting implementation. [2000 c 83 § 35.99.060 Relocation of facilities—Notice- Reimbursement. K` (1) Cities and Providers to w e authorized facilitiesnwithin he right ice when reasonably necessary for construction, alteration, '• r�> or improvement of the right of wa y for purposes of Pabli welfare, health, or safety. x Ed.) (2) Cities shall notify service providers as soon as Practicable of the need for relocation and shall specify the date by which relocation shall be completed. In calculating the date that relocation must be completed, cities shall consult with affected service providers and consider the extent of facilities to be relocated, the services requirements, and the construction sequence for the relocation, within the city's overall project construction sequence and constraints, to safely complete the relocation. Service providers shall complete the relocation by the date specified, unless the city, or a reviewing court, establishes a later date for completion, after a showing by the service provider that the relocation cannot be completed by the date specified using best efforts and meeting safety and service requirements. (3) Service providers may not seek reimbursement for their relocation expenses from the city or town requesting relocation under subsection (1) of this section except: (a) Where the service provider had paid for the reloca- tion cost of the same facilities at the request of the city or town within the past five years, the service provider's share of the cost of relocation will be paid by the city or town requesting relocation; (b) Where aerial to underground relocation of authorized facilities is required by the city or town under subsection (1) of this section, for service providers with an ownership share of the aerial supporting structures, the additional incremental cost of underground compared to aerial relocation, or as provided for in the approved tariff if less, will be paid by the city or town requiring relocation; and (c) Where the city or town requests relocation under subsection (1) of this section solely for aesthetic purposes, unless otherwise agreed to by the parties. (4) Where a project in subsection (1) of this section is primarily for private benefit, the private party or parties shall reimburse the cost of relocation in the same proportion to their contribution to the costs of the project. Service providers will not be precluded from recovering their costs associated with relocation required under subsection (1) of this section, provided that the recovery is consistent with subsection (3) of this section and other applicable laws. (5) A city or town may require the relocation of facilities at the service provider's expense in the event of an unforeseen emergency that creates an immediate threat to the public safety, health, of welfare. [2000 c 83 § 6.1 35.99.070 Additional ducts or conduits —City or town may require. A city or town may require that a service provider that is constructing, relocating, or placing ducts or conduits in public rights of way provide the city or town with additional duct or conduit and related structures necessary to access the conduit, provided that: (1) The city or town enters into a contract with the service provider consistent with RCW 80.36.150. The contract rates to be charged should recover the incremental costs of the service provider. If the city or town makes the additional duct or conduit and related access structures available to any other entity for the purposes of providing telecommunications or cable television service for hire, sale, or resale to the general public, the rates to be charged, as set forth in the contract with the entity that constructed the conduit or duct, shall recover at least the fully allocated costs [Title 35 RCW —page 3171 of the service provider. The service provider shall state both contract rates in the contract. The city or town shall inform the service provider of the use, and any change in use, of the requested duct or conduit and related access structures to determine the applicable rate to be paid by the city or town. (2) Except as otherwise agreed by the service provider and the city or town, the city or town shall agree that the requested additional duct or conduit space and related access structures will not be used by the city or town to provide telecommunications or cable television service for hire, sale, or resale to the general public. (3) The city or town shall not require that the additional duct or conduit space be connected to the access structures and vaults of the service provider. (4) The value of the additional duct or conduit requested by a city or town shall not be considered a public works construction contract. (5) This section shall not affect the provision of an institutional network by a cable television provider under federal law. [2000 c 83 § 7.] 35.99.080 Existing franchises or contracts not preempted. Chapter 83, Laws of 2000 shall not preempt specific provisions in existing franchises or contracts between cities or towns and service providers. [2000 c 83 § 9.] 35.100.010 Findings— Intent. (1) The legislature finds: (a) The continued economic vitality of downtown and neighborhood commercial districts in our state's cities is essential to community preservation, social cohesion, and economic growth; (b) In recent years there has been a deterioration of downtown and neighborhood commercial districts in both rural and urban communities due to a shifting population base, changes in the marketplace, and greater competition from suburban shopping malls, discount centers, and through the internet; (c) This decline has eroded the ability of businesses and property owners to renovate and enhance their commercial and residential properties; (d) In many areas of the state, downtown and neighbor- hood commercial areas are burdened further by deteriorating buildings, vacant building that cannot be legally occupied, and vacant brownfield infill sites which pose significant health and safety problems to tenants and pedestrians, and constitute a significant blight and detrimental impact on the [Title 35 RCW —page 3181 health, safety, and welfare of the community, as wel^ economic health; s . (e) Business owners in these districts need.to tnainr.:! their local economies in order to provide goods and to adjacent residents, to provide employment opponi to restore blighted properties, and to avoid disinvestment economic dislocations, and have developed downtown ar.„ neighborhood commercial district revitalization. programs w address these problems; and (f) It is in the best interest of the state of Washington tw, stop the decay of community areas and to promote an�j facilitate the orderly redevelopment of these areas. (2) It is the intent of the legislature to establish program to: (a) Provide for the allocation of a portion of locally imposed excise taxes to assist local governments in the financing of needed health and safety improvements,-public improvements, and other public investments, to encourage private development and to enhance and revitalize neighbor- hood business districts and downtown areas; and (b) Provide technical assistance and training to local governments, business organizations, downtown and neigh- borhood commercial district organizations, and business and property owners to accomplish community and economic revitalization and development of business districts. [2002 c 79 § 1..] 35.100.020 Definitions. The definitions in this section apply throughout this chapter unless the context clearly requires otherwise. (1) "Local retail sales and use tax" means the tax levied by a city or town under RCW 82.14.030, excluding that portion which a county is entitled to receive under RCW 82.14.030. (2) "Local retail sales and use tax increment revenue" means that portion of the local retail sales and use tax collected in each year upon any retail sale or any use of an article of tangible personal property within a downtown or neighborhood commercial district that is in excess of the amount of local retail sales and use tax collected on sales or uses within the downtown or neighborhood commercial district in the year preceding. (3) "Downtown or neighborhood commercial district" means (a) an area or areas designated by the legislative . authority of a city or town with a population over one hundred thousand and that are typically limited to the pedestrian core area or the central commercial district and compact business districts that serve specific neighborhoods within the city or town; or (b) commercial areas designated. as main street areas by the office of trade and economic development. (4) "Community revitalization project" means: (a) Health and safety improvements authorized to be publicly financed under chapter 35.80 or 35.81 RCW; (b) Publicly owned or leased facilities within the jurisdiction of a local government which the sponsor has authority to provide; and (c) Expenditure for any of the following purposes: (i) Providing environmental analysis, professional management, planning, and promotion within a downtown or (2002 Ed) Chapter 35.100 DOWNTOWN AND NEIGHBORHOOD COMMERCIAL DISTRICTS Sections 35.100.010 Findings— Intent. 35.100.020 Definitions. 35.100.030 Local retail sales and use tax increment revenue— Applications. 35.100.040 Local sales and use tax increment revenue — Authorization of use by legislative authority. 35.100.050 Determination of amount of revenue. 35.100.900 Severability -2002 c 79. 35.100.010 Findings— Intent. (1) The legislature finds: (a) The continued economic vitality of downtown and neighborhood commercial districts in our state's cities is essential to community preservation, social cohesion, and economic growth; (b) In recent years there has been a deterioration of downtown and neighborhood commercial districts in both rural and urban communities due to a shifting population base, changes in the marketplace, and greater competition from suburban shopping malls, discount centers, and through the internet; (c) This decline has eroded the ability of businesses and property owners to renovate and enhance their commercial and residential properties; (d) In many areas of the state, downtown and neighbor- hood commercial areas are burdened further by deteriorating buildings, vacant building that cannot be legally occupied, and vacant brownfield infill sites which pose significant health and safety problems to tenants and pedestrians, and constitute a significant blight and detrimental impact on the [Title 35 RCW —page 3181 health, safety, and welfare of the community, as wel^ economic health; s . (e) Business owners in these districts need.to tnainr.:! their local economies in order to provide goods and to adjacent residents, to provide employment opponi to restore blighted properties, and to avoid disinvestment economic dislocations, and have developed downtown ar.„ neighborhood commercial district revitalization. programs w address these problems; and (f) It is in the best interest of the state of Washington tw, stop the decay of community areas and to promote an�j facilitate the orderly redevelopment of these areas. (2) It is the intent of the legislature to establish program to: (a) Provide for the allocation of a portion of locally imposed excise taxes to assist local governments in the financing of needed health and safety improvements,-public improvements, and other public investments, to encourage private development and to enhance and revitalize neighbor- hood business districts and downtown areas; and (b) Provide technical assistance and training to local governments, business organizations, downtown and neigh- borhood commercial district organizations, and business and property owners to accomplish community and economic revitalization and development of business districts. [2002 c 79 § 1..] 35.100.020 Definitions. The definitions in this section apply throughout this chapter unless the context clearly requires otherwise. (1) "Local retail sales and use tax" means the tax levied by a city or town under RCW 82.14.030, excluding that portion which a county is entitled to receive under RCW 82.14.030. (2) "Local retail sales and use tax increment revenue" means that portion of the local retail sales and use tax collected in each year upon any retail sale or any use of an article of tangible personal property within a downtown or neighborhood commercial district that is in excess of the amount of local retail sales and use tax collected on sales or uses within the downtown or neighborhood commercial district in the year preceding. (3) "Downtown or neighborhood commercial district" means (a) an area or areas designated by the legislative . authority of a city or town with a population over one hundred thousand and that are typically limited to the pedestrian core area or the central commercial district and compact business districts that serve specific neighborhoods within the city or town; or (b) commercial areas designated. as main street areas by the office of trade and economic development. (4) "Community revitalization project" means: (a) Health and safety improvements authorized to be publicly financed under chapter 35.80 or 35.81 RCW; (b) Publicly owned or leased facilities within the jurisdiction of a local government which the sponsor has authority to provide; and (c) Expenditure for any of the following purposes: (i) Providing environmental analysis, professional management, planning, and promotion within a downtown or (2002 Ed) Page 1 of 1 RCW 39.04.180 Trench excavations -- Safety systems required. On public works projects in which trench excavation will exceed a depth of four feet, any contract therefor shall require adequate safety systems for the trench excavation that meet the requirements of the Washington industrial safety and health act, chapter 49.17 RCW. This requirement shall be included in the cost estimates and bidding forms as a separate item. The costs of trench safety systems shall not be considered as incidental to any other contract item and any attempt to include the trench safety systems as an incidental cost is prohibited. [1988 c 180 § 1.] http: / /www.mrsc. org /mc /rcw/RC W %20 %203 9 %20 %20TITLE/RC W%20 %203 9 %20. %20... 9/27/2002 -332- 110 -010 Title 332 WAC: Natural Resources, Board and Department of DISPOSITION OF SECTIONS FORMERLY CODIFIED IN THIS CHAPTER 332 - 110 -001 Certificate of filing. [Filed 3/2166.) Decodified 12/31n7. WAC 332 -110 -010 Commissioner's authority. It was moved by Governor Rosellini, seconded by Dean Marck- worth, and passed, that the commissioner be authorized to administer all leases of state owned lands under the depart- ment's direction on the same principle as school grant lands, subject to periodic review and power of intervention by the board. [Motion No. 78, minutes of April 1, 1958, meeting of board of natural resources (codified as WAC 332 -110 -010), filed 3/2/66.1 Reviser's note: The above section is an excerpt from the minutes of the April I, 1958, meeting of the board of natural resources, which were filed in their entirety in order that motion number 78 may be given effect as a rule under the Administrative Procedure Act. WAC 332 - 120 -010 Authority. The department of natu- ral resources, in accordance with RCW 58.24.030 and 58.24.040 (1) and (8), prescribes the following regulations concerning the removal or destruction of survey monuments and the perpetuation of survey points. [Statutory Authority: RCW 58.24.040(8). 94 -06 -034 (Order 617), § 332- 120 -010, filed 2/25/94, effective 3/28/94; Order 131, § 332- 120 -010, filed 3/1/72, effective 417/72.1 WAC 332 - 120 -020 Definitions. The following defini- tions shall apply to this chapter: Department: The department of natural resources. Engineer: Any person authorized to practice the profes- sion of engineering under the provisions of chapter 18.43 RCW who also has authority to do land boundary surveying pursuant to RCW 36.75.110, 36.86.050, 47.36.010 or 58.09.090. Geodetic control point: Points established to mark hori- zontal or vertical control positions that are part of the National Geodetic Survey Network. Land boundary survey corner: A point on the boundary of any easement, right of way, lot, tract, or parcel of real property; a controlling point for a plat; or a point which is a General Land Office or Bureau of Land Management survey corner. Land corner record: The record of corner information form as prescribed by the department, of natural resources pursuant to chapter 58.09 RCW. [Title 332 WAC —p. 1061 Land surveyor: Any person authorized to practice t profession of land surveying under the provisions of chap 18.43 RCW. Local control point: Points established to mark," X11fiz, tal or vertical control positions that are part of a perm' an! government control network other than the Natiorial'Geoo C Survey network. :' Parcel: A part or portion of real property including not limited to GLO segregations, easements, rights of w aliquot parts of sections or tracts. Removal or destruction: The physical disturbance covering of a monument such that the survey point longer visible or readily accessible. Survey monument: The physical structure, along any references or accessories thereto, used to mark the tion of a land boundary survey corner, geodetic control p( or local control point. Survey Recording Act: The law as established and ignated in chapter 58.09 RCW. . 'a"1: [Statutory Authority: RCW 58.24.040(8). 94 -06 -034 (Order 617), §' 120 -020, filed 2/25/94, effective 3/28/94; Order 131, § 332- 120 -020, 311/72, effective 4/7172.1 WAC 332 - 120 -030 Applicability. (1) No survey mon- ument shall be removed or destroyed before a permit i obtained as required by this chapter. (2) Any person, corporation, association, department,,or subdivision of the state, county or municipality responsible for an activity that may cause a survey monument to.b'e removed or destroyed shall be responsible for ensuring that the original survey point is perpetuated. It shall be the respon- sibility of the governmental agency or others performing co'. n- struction work or other activity (including road or stree resurfacing projects) to adequately, search the records and ,thl physical area of the proposed construction work or other activity for the purpose of locating and'referencing • an known or existing survey monuments. { ' A government agency, when removing a local control point that it has established, shall be exempted from the requirements of this chapter. (3) Survey monuments subject to this chapter are those.. monuments marking local control points, geodetic control; points, and land boundary survey corners. In regard to local or geodetic control points the depart -4_ ment will defer authorization for the removal or destruction<1 of the survey monument to the agency responsible for the; establishment or maintenance of the control point. Such` agency may, at their discretion, exempt the applicant from,: the remonumentation requirements of this chapter. Such. exemption shall be noted by the agency on the application form..; [Statutory Authority: RCW 58.24.040(8). 94 -06 -034 (Order 617), § 332" 120 -030, filed 2/25/94, effective 3 /28/94; Order 131, § 332 - 120-030. filed 3/1/72, effective 4/7/72.1 WAC 332 -120 -040 Monument removal or destruc- tion. (1) All land boundary survey monuments that are removed or destroyed shall be replaced or witness monu' ments shall be set to perpetuate the survey point. (2001 Chapter 332 -120 WAC SURVEY MONUMENTS — REMOVAL OR DESTRUCTION WAC 332 -120 -010 Authority. 332 - 120 -020 Definitions. 332 -120 -030 Applicability. 332- 120 -040 Monument removal or destruction. 332 -120 -050 Application process. 332 -120 -060 Project completion— Perpetuation of the original posi tion. 332 - 120 -070 Application/permit form. WAC 332 - 120 -010 Authority. The department of natu- ral resources, in accordance with RCW 58.24.030 and 58.24.040 (1) and (8), prescribes the following regulations concerning the removal or destruction of survey monuments and the perpetuation of survey points. [Statutory Authority: RCW 58.24.040(8). 94 -06 -034 (Order 617), § 332- 120 -010, filed 2/25/94, effective 3/28/94; Order 131, § 332- 120 -010, filed 3/1/72, effective 417/72.1 WAC 332 - 120 -020 Definitions. The following defini- tions shall apply to this chapter: Department: The department of natural resources. Engineer: Any person authorized to practice the profes- sion of engineering under the provisions of chapter 18.43 RCW who also has authority to do land boundary surveying pursuant to RCW 36.75.110, 36.86.050, 47.36.010 or 58.09.090. Geodetic control point: Points established to mark hori- zontal or vertical control positions that are part of the National Geodetic Survey Network. Land boundary survey corner: A point on the boundary of any easement, right of way, lot, tract, or parcel of real property; a controlling point for a plat; or a point which is a General Land Office or Bureau of Land Management survey corner. Land corner record: The record of corner information form as prescribed by the department, of natural resources pursuant to chapter 58.09 RCW. [Title 332 WAC —p. 1061 Land surveyor: Any person authorized to practice t profession of land surveying under the provisions of chap 18.43 RCW. Local control point: Points established to mark," X11fiz, tal or vertical control positions that are part of a perm' an! government control network other than the Natiorial'Geoo C Survey network. :' Parcel: A part or portion of real property including not limited to GLO segregations, easements, rights of w aliquot parts of sections or tracts. Removal or destruction: The physical disturbance covering of a monument such that the survey point longer visible or readily accessible. Survey monument: The physical structure, along any references or accessories thereto, used to mark the tion of a land boundary survey corner, geodetic control p( or local control point. Survey Recording Act: The law as established and ignated in chapter 58.09 RCW. . 'a"1: [Statutory Authority: RCW 58.24.040(8). 94 -06 -034 (Order 617), §' 120 -020, filed 2/25/94, effective 3/28/94; Order 131, § 332- 120 -020, 311/72, effective 4/7172.1 WAC 332 - 120 -030 Applicability. (1) No survey mon- ument shall be removed or destroyed before a permit i obtained as required by this chapter. (2) Any person, corporation, association, department,,or subdivision of the state, county or municipality responsible for an activity that may cause a survey monument to.b'e removed or destroyed shall be responsible for ensuring that the original survey point is perpetuated. It shall be the respon- sibility of the governmental agency or others performing co'. n- struction work or other activity (including road or stree resurfacing projects) to adequately, search the records and ,thl physical area of the proposed construction work or other activity for the purpose of locating and'referencing • an known or existing survey monuments. { ' A government agency, when removing a local control point that it has established, shall be exempted from the requirements of this chapter. (3) Survey monuments subject to this chapter are those.. monuments marking local control points, geodetic control; points, and land boundary survey corners. In regard to local or geodetic control points the depart -4_ ment will defer authorization for the removal or destruction<1 of the survey monument to the agency responsible for the; establishment or maintenance of the control point. Such` agency may, at their discretion, exempt the applicant from,: the remonumentation requirements of this chapter. Such. exemption shall be noted by the agency on the application form..; [Statutory Authority: RCW 58.24.040(8). 94 -06 -034 (Order 617), § 332" 120 -030, filed 2/25/94, effective 3 /28/94; Order 131, § 332 - 120-030. filed 3/1/72, effective 4/7/72.1 WAC 332 -120 -040 Monument removal or destruc- tion. (1) All land boundary survey monuments that are removed or destroyed shall be replaced or witness monu' ments shall be set to perpetuate the survey point. (2001 Survey Monuments -- Removal or Destruction (2) A land boundary survey corner shall be referenced to the Washington Coordinate System of 1983, adjusted in 1991, prior to removal or destruction. See WAC 332-130 - 060, Geodetic control, survey standards. An applicant may request a variance from this referenc- ing requirement by so noting in the applicant information section on the permit and providing the justification on the back of the form. The department shall note whether the vari- ance is approved or not approved and shall provide the reason for not approving the request. [Statutory Authority: RCW 58.24.040(8). 94 -06 -034 (Order 617), § 332- 120-040, filed 2/25/94, effective 3/28/94; Order 131, § 332 - 120 -040, filed 3/1172, effective 4/7/72.] WAC 332 -120 -050 Application process. (1) Whenever a survey monument needs to be removed or destroyed the application required by this chapter shall be submitted to the department. It shall be completed, signed and sealed by a land sur- veyor or engineer as defined in this chapter. (2) Upon receipt of a properly completed application, the department shall promptly issue a permit authorizing the removal or destruction of the monument; provided that: (a) In extraordinary circumstances, to prevent hardship or delay, a verbal authorization may be granted, pending the processing and issuance of a written permit. A properly com- pleted application shall be submitted by the applicant within fifteen days of the verbal authorization. (b) Applications received by the department concerning local or geodetic control points will be referred to the appro- priate agency for action. The applicant will be notified when such action is taken. (3) One application may be submitted for multiple mon- uments to be removed or destroyed as part of a single project; however, there shall be separate attachments to the applica- tion form detailing the required information for each monu- ment removed or destroyed. [Statutory Authority: RCW 58.24.040(8). 94 -06 -034 (Order 617), § 332- 120 -050, filed 2/25/94, effective 3/28/94; Order 131, § 332 -120 -050, filed 3/1/72, effective 4/7/72.] WAC 332 - 120 -060 Project Gon of the original position. completion—Perpetua- 1 activity that caused the removal(1) After completion of the authoulho ri sed otherwise: land surveyor or engineer shall, unless specifically (a) Reset a suitable monument at the original survey Point or, if that is no longer feasible; (b) Establish perma accessible from the or ginaltmontumentnto perpetua ea the position of the preexisting monument. this c) Land boundary survey monumentation required by - 58' 8 -09 3�t the requirements of the RCW 09*120and surv(3) After completion of the remonumentation, the land 6 eyor or engineer shall complete the report form required Y this chapter and forward it to the department. nall rn ?dditio nail y after remonumenting any corner origi- Y monumented by the GLO or BLM, a land corner record t200j Ed.) 332 -120 -070 form shall also be filed with the county auditor as required by the Survey Recording Act. [Statutory Authority: RCW 58.24.040(8). 94 -06 -034 (Order 617), § 332- 120-060, filed 2/25/94, effective 3/28/94.] WAC 332 - 120 -070 Application/permit form. The fol- lowing form shall be used when making application to remove or destroy a survey monument: [Title 332 WAC —n. lrrn ii 332 - 120 -070 Title 332 WAC: Natural Resources, Board and Department of APPLICATION FOR PERMIT PERMIT NO. TO REMOVE OR DESTROY You are hereby authorized to remove the described survey monument(s): °r destrQ� A SURVEY MONUMENT AUTHORIZING SIGNATURE /DATE APPLICANT INFORMATION: (DNR or Other Authorizing Agency) NAME:. TELEPHONE NO: DATE: COMPANY OR AGENCY NAME AND ADDRESS: x'r . I estimate that this work will be finished by (date) I request a variance from the requirement to reference to the Washington Coordinate System. (Please provide your justification in the space below.) The variance request is approved; not approved. (FOR DNR USE ONLY) Reason for not approving MULTIPLE MONUMENTS: Check here if this form is being used for more than one monument. You must attach separate sheets showing the information required below for each monument affected. You must seal, sign and date each sheet. INDEXING,INFORMATION FOR AN INDIVIDUAL MONUMENT: 1) THE MONUMENT IS LOCATED 1N: SEC TWP RGE I/4 -I/4 2) ADDITIONAL IDENTIFIER: (e.g., SLM designation for the corner, street intersection, plat name, block, lot, etc.) MONUMENT INFORMATION: Describe: 3) the monument /accessories found marking the position, 4) the temporary references set to remonument the position (include coordinates when applicable), and 5) the permanent monument(s) to be placed on completion (if a permanent witness monument(s) is set include the references to the original position). SEAL /SIGNATURE /DATE SIGNED (Form prescribed 2/94 by the Public Land Survey Office, Dept. of Natural Resources, pursuant to RCW 58.24.040 (8).) Survey Monuments— Removal or Destruction j COMPLETION REPORT FOR MONUMENT t REMOVAL OR DESTRUCTION (TO BE COMPLETED AND SENT TO THE DNR AFTER THE WORK IS DONE.) I have perpetuated the Position(s) as per the detail shown on the application form. SEAL /SIGNATURE /DATE SIGI;ED OR I was unable to fulfill the plan as shown on the application form. Below is the detail of what I did do re perpetuate the original positions) (If the application covered multiple monuments attach sheets providing the required information. Seal. sign and date each sheet.) 332 - 120 -070 [Title 332 WAC —p. 109] Affidavit of Publication STATE OF WASHINGTON, 1 COUNTY OF SNOHONHSH f S.S. SUMMARI' OF ORDINANCE NO 3418 l of the Gry of Edmonds, Washington On the 16th day of September, 2002, the City Council of the City of Edmonds, passed Ordinance No. 3418. A summary of the content of said ordinance, consisting of the title, provides as follows: The undersigned, being first duly sworn on oath deposes and says that she is AN ORDINANCE OF THE CITY OF EDMONDS, GRANTING O C R PCs III CORPORATION, A RIGHT-OF-WAY PERMIT, AND INSTALL, OPERATE, AND MAINTAIN A MONOPOLE Principal Clerk of THE HERALD, a daily newspaper printed and published WITHIN A CERTAIN PUBLIC RIGHT -OF- WAY OF THE CITY OF EDMONDS, WASHINGTON, PRESCRIBING CERTAIN RIGHTS, DUTIES, TERMS, in the City of Everett, County of Snohomish, and State of Washington; that AND CONDITIONS WITH RESPECT THERETO, AND ESTABLISHING AN EFFECTIVE DATE. The full text of this Ordinance will be mailed upon request. said newspaper is a newspaper of general circulation In said County and DATED this 17th day of Se tember, 2002. cliPY CLERK, SANDRA S. CHASE Published: Septemuer 22, 2002... State; that said newspaper has been approved as a legal newspaper by order of the Superior Court of Snohomish County and that the notice City of Edmonds Summary of Ordinance NO. 3418 a printed copy of which is hereunto attached, was published in said newspaper proper and not in supplement form, in the regular and entire edition of said paper on the following days and times, namely: September 22, 2002 and that said newspaper was regularly distributed to its subscribers during all of said period. Principal Clerk Subscribed and sworn to before me this 23rd day of September, 2002 "Ste .� 0N, &-- j�to NOTARY cn Notary Public in aninfix t1.Qidin5' at i Everett, Snohomish County. •,: r,� i F2 FC E i'V-Ty�' SEP 2 4 2002 EDMONDS CITY CLERK STATE OF WASHINGTON, COUNTY OF SNOHOMISH. ORDINANCE NO. 3418 i AN ORDINANCE OF THE CITY OF EDAADNDS AND CONDITIONS WITH RESPECT THERETO, AND ESTABLISHING AN EFFECTIVE DATE. WHEREAS, VoiceStream PCs .III Corporation ( "VoiceStream ") has requested that the City grant it the right to Install, operate, and maintain a sixty -foot monopole within the public ways of the City; and WHEREAS, such request to replace an existing PUD power pole has been approved by the Architectural Design Board and hearing examiner, and WHEREAS, the City Council has found it desirable for the welfare of the City and its residents that such a Right- of-Way Use Permit be granted to VolceStream; and y WHEREAS, the City Council has the authority under RCW 35A.47.040 to grant Right-of-Way Use Permits and I franchises for the use of Its streets and other public f properties; and WHEREAS, the City is willing to grant the rights requested subject to certain terms and conditlons, NOW, THEREFORE, THE CITY COUNCIL OF THE Clry OF EDMONDS, WASHINGTON DO ORDAIN AS FOLLOWS: Section 1. Deli It ns For the purposes of this Right- of•-05 se ermit. IF following terms, phrases, words, and abbreviations shall have the meanings ascribed to them below. When not inconsistent with the context, words used in the present tense Include the future tense, words in the plural number include the singular number and words in the singular number include the plural number. a. "Affiliate" meads an entity which owns or controls, k Is owned or controlled by, or is under common i ownership with the Permittee. b. City" means the City of Edmonds, Washington. c. "Communication Service" shall mean any telecom- munications services, telecommunications cappacity, or dark fiber, provided by the Permittee using its Commun- ication System or Facilities, either directly or as a carrier for its subsidiaries, Affiliates, or any other person engaged in Communication Services, including, but not limited to, the transmission of voice, data or other elec- tronic information, facsimile reproduction, burglar alarm monitoring, meter reading and home shopping, or other subsequently developed technology which carries an electronic signal over fiber optic cable. However, Com- munications Services shall not include the provision of cable television, open video, or similar services, as de- lined in the Communications Act of 1934, as amended, for which a separate permit would be required. d. "Communication" or "Facilities" shall mean the Permittee's (or other valid right of way use permit holder's) sixty -foot monopole and attendant structures f constructed and operated within the City's Public Way, and shall Include all cables, wires, ponduits, ducts, pedestals, and any associated converter, equipment, or other facilities within the City's Public Way, designed and constructed for the purpose of providing Commun- ication Service. The terms shall also include such additional facilities as the parties by mutual agreement shall designate in the future and incorporate by written addendum. A general description of the Facilities cur- rently planned by Permittee Is set forth in Exhibit A, attached hereto and incorporated by this reference. e. "FCC" means the Federal Communications Com- mission, or any successor governmental entity hereto. I. "Permittee" means VoiceStream PCs III Corpora• lion, or the lawful successor, transferee, or assignee thereof. g. "Person" means an individual, partne mental entity. rshlp, associ- ation, joint stock company, trust. corporal ion, or govern- h. "Public Way" shall mean the surface of, and any space above or below, any public street, highwayY, freeway, bridge, path, alley, court, boulevard, sldewalk, parkway, lane, drive circle, or other public right•of -way, including, but not limited to, public utility easements, utility strips. or rights -of -way dedicated for compatible uses and any temporary or pemtanent fixtures or improvements located thereon now or hereafter held by the City in the Service Area which shall entitle the City and the Permittee the use thereof for the purpose of installing, 0 eraung, repairing, and maintaining the Facility. Public Way shall also mean any easement now or hereafter held by the City within the Service Area for the purpose of public travel, or for utility of public ser- vice use dedicated for compatible uses, and shall Include other easements or rights-of-way as shall within their proper use and meaning entitle the City and the Permittee la the use thereof for the purposes of install- ing or trans,- itling the Permittee's Communication Serv- Ices over piles, wires• cable, conductors. amplifiers. !I appliances, attachments, and other properly as may be I ordinarily necessary and Pertinent to the Communi- cation System. ection . Authority ranted. The City hereby grants to the ermines, its heirs• successors, legal representatives. and assigns, subject to the terms and conditions herein- alter set forth• the right, privilege. and authority to Con• struct, reconstruct, upgrade, operate, maintain, replace, , and use all necessary equipment and Facilities thereto for r the Permittee's Communication System. However, the Permittee Is only authorized to place its communication Facilities in, uhtler, on, across, over, through, along, or i below the Public Way, of the City described in Exhibit A hereto. Section 3. Construcuon Right-of-Way Use Permits H2 Ire_d, A, Prior to site-specific location and installation of any portion of its communication Facilities within a public way, i the Right -of -Wayy Use Permittee shall apply for and obtain a Construction Rfghbof -Way Use Permit pursuant to EMC Chapter 18.60. 1 B. Unless otherwise provided in said Right- of•WaY Use Permit, the Permittee shall give the City at least 48 i hours notice of the Permittee's Intent to commence work in the Public Ways. The Permittee shall file plans or maps with the Cl ly showing the proposed location of its com• munication Facilities and pay all duty established Right-of- Way Use Permit and Inspection lees associated with the processing of the Right-of-Way Use Permit. Im no case shall any work commence within any public way without t said Construction Right -of -Way Use Permit, except as ! otherwise provided in this Right -of -Way Use Permit. Section 4. Grant Limited Io Occuoati ton Nothing con- tained herein shell be construed to grant or convey any righ:. title, or Interest in the Public Ways of the City 10 the I Permittee, nor shall anything contained herein constitute a ; warranty of title. Sect o 5 �grr�r of 111Oht•ot•Wav Use Permit The first term o this Rigrn•ol -Way UUs�rm,t shall be or a perlotl of ten (10) years from the date of acceptance as set forth in Section 32, unless sooner terminated. This Right•of- j Way Use Permit shall automatically renew tot one (1) additional ten (10) year term. Provided, however, that either party may notify the other of Its desire to renego- tittle any of the terms set forth herein or of its desire to X Affidavit of Publication S.S. The undersigned, being first duly sworn on oath deposes and says that she is Principal Clerk of THE HERALD, a daily newspaper printed and published in the City of Everett, County of Snohomish, and State of Washington; that said newspaper is a newspaper of general circulation in said County and State; that said newspaper has been approved as a legal newspaper by order of the Superior Court of Snohomish County and that the notice City of Edmonds Ordinance No. 3418 a printed copy of which is hereunto attached, was published in said newspaper proper and not in supplement form, in the regular and entire edition of said paper on the following days and times, namely: October 23, 2002 and that said newspaper was regularly distributed to its subscribers during all of said period. Subscribed and sworn to before me this 23rd day of October, 2002 RECEIVE Or. T 2 4 2002 EDMONDS CITY CLERK �0t5tit: C ` NOTq Olin d% 'dint v .•rs, .= r occurs. the uommurxry services uirector may assist the Permitted and such subsequent Permitted or Franchisee In resdvtng the dispute. Further, this Right -of -Way Use Permit shell in no way prevent or prohibit the City from using any of its Public Ways or affect Its jurisdiction over them or any part of them, and the City shall retain power to, make all necessary changes, relocations, repairs, main- I. establishment improvement, dedication of the same es the City may deem fit, including the dedication, establishment, maintenance, and improvement of all now Public We , and in compliance with Section 7, below. e AmRelocation o1 Communication Facility. ite, sprees an covenants, at as sole cost and expense, to protect, support, temporarily discon- nect, relocate, or remove from anyy public way any pdalon of its communication Facilities whon so required by the Community Services Director by reason of traffic corl- dltidne, public safely, dedications of new Public Ways and the establishment and improvement thereof, widening and Improvement of existing Public Ways, street vacations, freeway construction, change or establishment of street grade, or the construction of any public improvement or structure by any governmental agency acting in a governmental capacity, rovided that the Permluee shall in all cases have the privilege to temporarily relocate, in the authorized portion of the same or similar public way upon approval by the Community Services Director, any section of cable or any other facility required to be temporarily disconnected or removed. Upon the reasonable request of the Community Set. vices Director and in order to facilitate the design of City street and right -of -way Improvements, the Permitted agrees to, at its sole cost and expense, locate, and if reasonably determined necessary by the City, to excavate and expose portions of its communication Facilities for Inspection so that the location of same may be taken into account In the improvement design. PROVIDED that, Permitted shall not be required to excavate and expose it's Facilities unless the Permitlee's as -built plans and maps of it's Facilities submitted pursuant to Section 9 of this Right-of-Way Use Permit are reasonably determined by the Community Services Director to be inadequate for purposes of this paragraph. The decision to relocate said Facilities In order to accommodate the City's improve ments shall be made by the Community Services Director upon Javervir of the location and construction of the Pemijf ti's Facilities. 1f,lbe Oommunily Services Director determines that the ! necessitates the relocation of the Permittee's then v; i t Q'iWljfSSe, -the City shall 40 6lfir, prior to the commencement of such rgvemegt: project, provide the Permittee with t notice requiring such relocation. In the event h relocation requires land use approvals by " ` ^ such notiod rinod shall be extended by an 00 days. Pprovided, however, that in the 1aviam11�`r8rtiergency posing a threat to public safety, health iSr welfare, or in the event of an emergency beyond (ho conlrof of the City and which will result in severe financial consequences to the City, the City shell give the Permitted written notice as soon as praclicable; and 2 Provide the Permittee with copies of information for such improvement project and a proposed location for the Pormillee's Facilities so that the Permillee may relocate its Facilities in other Public Ways in order to accommodate such improvement broiect. 3 The Permittee shrill complete relocation of its Facilities at no charge or expense to the City so as to accommodate the improvement project at least 10 days prior to commencement of the pioj1ecl. In the event of an emergency as described hhrwn. the Permatwr shall relocate its Facilities within the time period specified by the Community Services Director The Permittee may, after receipt of written notice requesting a relocation of its Facilities, submit to the Cityy written alternatives to such relocation. The City shall eval- uate such alternatives and advise the Permittee In writing it one or more of the alternatives Is suitable to accom• modate the work which would otherwise necessitate relocation of the Facilities. If so requested by the City, the Permittee shall submit additional Information to assist the City in making such evaluation The City shall give each alternative proposed by the Permittee full and fair consld• oration, within a reasonable lime. so as to allow for the relocation work to be performed in a timely manner. In the event the City ultimately determines that there Is no other reasonable alternative, the Permittee shall relocate its Facilities as otherwise provided in this Section The provisions of this Section shall In no manner pre- lude or restrict the Permittee from making any arrange- ments it may deem appropriate when responding to a request for relocation of its Facilities by any person or entity other than the City, where the Facilities to be constructed by said person or entity are not or will not become City-owned, operated or maintained Facilities provided that such arrangements do not unduly delay a Cityy construction project. B. Except as provided in Section 16(E), the Permittee will indemnify, hold harmless, and pay the costs of defending the City against any and all claims, suits, actions, damages, or liabilities for delays on City con• struction projects caused by or arising out of the failure of the Permitted to relocate its Facilities in a timely manner, provided, that the Permitted shall not be responsible for damages due to delays caused by the City or circum• stances beyond the control of the Permittee. C. The parties understand that the relocation of Facilities pplaced in the right-of-way is partially governed by RCW 35 99, et.fll., and to the extent that the provisions of this section are not in compliance with the terms of RCW 3599 et.al (or successor statute), the provisions of the statute shall control and the terms of this section shall be amended to be in conformance thereto, Section y The Permittee s Mape an.d�.. orris. After construction i5 complete, th9 Peirntlt68 shell provide the Ciry with accurate copies of all as-built plans and maps in a lortn and content prescribed by the Community Services Director These plans shall be provided at no cost to the ,City, and shall include hard copies and digital copies in a formal specified by the Community Services Director Secton 9. W P bl�Ways, During any period of lures, it any, shall be erected and used in such places and positions within said Public Ways and other public prop• entes so as to intetere as little as possible with the free passage of traffic and the free use of adjoining property The Permittee shall at all times post and maintain proper barricades and comply with all applicable safety regula- tions during such period of construction as required by the ordinances of the Cit y or the laws of the State of Washing- ton, ,ncludng RCW39.04180 for the construction of trench safety systems During the progress of the work, the, Permittee shall not unnecessanly obstructthe passage of proper use of the Public Ways, and all work by the Permittee in the area covered by this Permit and as described in this Section shall be performed in accordance with City of Edmonds Public Works Construction Standards and warranted for a period of 1 year If either the City or the Permittee shall at any time after installation of the Facilities plan to make excavations in area Covered by this Permit and as described in this Section, the party planning such excavation shall afford the other, upon receipt of written request to do so, an opportunity to share such an excavation PROVIDED THAT A Such joint use shall not unreasonably delay the work of the party causing the excavation to be made or unreasonably increase its costs, B Such joint use shall be arrang9ed and accomplished on terms and conditions Saltsl &Clary to both parties, and C. Either party may deny such request for safety reasons or if their respective uses of the trenh are incompatible D Such pint use shall not necessarily interfere with operation of the communication factlit The joint use provisions of this Section shall apply only to joint use by the City and the Permittee Nothing in this Section is intended to require the Permittee to afford other similar users the opportunity to share the Permitted's excavations. Section to, jgs�QrQt!on ail ?otrygliory The Permit- tee shall, after installation, construction, relocation, main- tenance, removal, or repair of its communication Facilities excavations i fJQ5"r @lion @(ter_Qgn�t�pt -iyra The Permit. tee She all a 6r Installation. construction, relocation, main- tenance, removal, or repair of its communication Facilities within the Public Ways, restore the surface of said Public Ways and any other City -owned property which may be disturbed by the work, to at least the same condition the public way or City -owned property was in immediately prior to any such installation, construction, relocation, maintenance. or repair, reasonable wear and tear excep- ted. The Public Works Department shall have final approv- al of the condition of such Public Ways and City -owned property after restoration, all in accordance with the Edmonds City Code and Public Works Construction stan- dards. All survey monumer is which are 10 be disturbed or displaced by such work st, 311 bt referenced and restored. as per WAC 332.120, as the same now exists or may hereafter be amended. and all pertinent Inderal slate and local standards and specifications. The Permitlen agrees to promptly complete all restoration work and to promptly repair any damage caused by such work to the Public Ways or other affected area at its sole cost and expense according to the time and terms specified in the Construc- tion Right -of -Way Use Permit issued by the City all in accordance with the applicable provisions of the Edmonds City Code, as the same now exists or as it may hereafter be amended or superseded All work and restoration by the Permitted pursuant to this Section shall be performed in accord with City of Edmunds Public Works Construction standards and warranted for a period of 1 years Se b n Emergency Wgrk_{ Flight- il- Way_ r• and Waiver n the event of any emergency in which any of 1 -he 'ermillea -s communication Facilaies locain-d in above. or under any public way breaks are damaged ceases to provide service, or if the Permitted's construc. tion area is otherwise in such a condition as to immedi- ately endanger the property, life, health, or safety of any individual, the Permitted shall immediately take the proper emergency measures to repair its Facilities, to cure or remedy the dangerous conditions for the protection of property, life, health, or safety of individuals without first applyingp for and obtaining a (tr ht -of -Way Use Permit as requited by this Right -ol -Way Use Permit However, this shall not relieve the Right- ol•Way Use Permitted from the requirement of notifyun the City of the emergency work and obtaining any Right -of -Way Use Permits necessarryy for this purpose after the amergency work. The Righl -ol- Way Use Permiltee shall nolily the Cily by telephone immediately upon learning of the emergency and shall apply for all required Right- ol-Way Use Permits not Ieter than the second succeeding day during which the Issaquah City Hall is open for business Secl�on ,p�nggrous Condltlonsll t rn�1Qr_G_Iy,Jg Abe 01 WI e�never construction. installaaon, Or excavation o the communication Facilities authorized by this Right. of -Way Use Permit has caused or contributed to a condi- tion that appears to substantially impair the lateral support of the adjoining public way, street, or public place, or en• ger dans the public, street utilities, or City -owned properly, the Community Services Director may reasonably require the Permitted, at the Permillee's own expense, to take action to protect the public, adjacent public places, City- owned property, streets, utilities, and Public Ways. Such action may include compliance within a prescribed time In the event that the Permittee fails or refuses to Promptly take the actions directed by the City, or fails to ully comply with such directions, or if emergency condi- tions exist, which require immediate action, the City may enter upon the property and take such actions as are necessary to protect the public, the adjacent streets, utilities, Public Ways, to maintain the lateral support there- of, or actions regarded as necessary safety Precautions; and the Permittee shall be liable to the City for the reasonable costs thereof. ,SgEtiorLl,� &LCos_D The Permiltee shall be subject to all • ay ITsa Pr,r:d foes assuaaled with activities undertaken through the authority granted in this Right-of-Way Use Permit or under the laws of the City. Where the City incurs costs and expenses for review, Inspection, or supervision of activities undertaken through the authority granted in this night -ol -Way Use Permit or any ordinances relating to the subject for which a Right-of. Way Use Permit fee is not established, the Permittee shall reimburse the City directly for any and all reasonable costs, after receipt of an Itemized bill In addition to the above, the Permittoa shall promptly reimburse the City for any and all reasonable costs the City Incurs in response to any emergency Involving the Permitted's Communication Facilities, alter receipt of an itemized bill, The time of City employees shall be charged at their respective rate of salary, Including overtime it applicable, plus benefits and an overhead charge of six percent (6 i•) of salary. All billings will be itemized as to specifically identifyy, the costs and expenses for each project for which the Clty claims reimbursement. The billing may be on an annual basis, but the City shall provide the Right -of -Way Use Permit with the City's itemization of costs at the conclusion of each project for information purposes. o SWe�cytion tA. Annual Comnensallon for U$a pf the Right- In consideration for the use of the Right- ol•Way, Permittee shall commit to providing an annual payment for each approved Facility shown on Exhibit A. The amount of the annual payment for the partial year (prorated) and for calendar year 2003 shall be as follows. 1 Separate support structure (such all mono- pole or lattice lower) erected solely for wireless antennas, equipment cabinets are in the Right-of-Wary, annual payment 1s Five Thousand Dollars ($5,000). 2. Antennas placed on an existing structure or replacement of an existing structure, equipment cabinets are in the Right-of-Way, annual payment is Three Thou- sand Dollars ($3,000). 3. Antennas placed on an existing structure or replacement of an existingg structure, equipment cabinets ere not within the R ght- of•Way, annual compensation fit Two Thousand Dollars ($2,000), Four said payments shall be made as follows' the first prorated payment prior to proce9ding with pole attachments and annual payments there Alter on or before January 15th of each year B For the purposes of this section, *existing support structures' mean existing utility poles, light poles or other approved structures that exist in the Flight-of-Way that can be used to support wireless antennas. C. For the purpose of this section, 'replacement Poles' mean replacing an existing support structure with a ke structure that Is either taller and/or stronger than the existing structure for purposes of placement of wireless antennas. D. The compensation provided for in Subsection A shall be adjusted annually each year of the first ten year term by an Increase of live (5) percent:',The parties shall meet in the tenth year to readjust the,provisinns of this section and Section 17 Insurance to f*ablish levels of compensation, annual adjustments therryeto and insurance consistent with that charged by comparable Jurisdictions. E In the event that the Facilities of the Permittee are out of service due to a refocallon, under the provisions of Section 7 for the convenience of the GO ra Credil equal to the prorated value of the time Willi Facilities ere out of service shall' be 'glvdri' oA" "next years compensation " 7 �,r $ c r 5 Gr I As addflbga Aideration for the rip t an pnvl ges grenled hereun ri l a Permittee agrees to pay, at the time Of, acceptallc0is Right -ol• Way Use Permit, a one time grant lea o , vd Hundred Dollars ($500.00) to defray 0te City's 190e ,and admmi- stranve costs and expenses associated with negotiating and approving this Right -ol -Way Use Permit, provided that such expenses shall not be Included in the reimbursement provisions set forth In Section 14 of this Rtght•ol•Way Use ermil A 1x--6 I Ti10 fib I a ld�a!v_$r, ermiltae ere y fe eases, covenants net to bring Suit and agrees to indemnity, defend and hold harmlvns the City, its officers. employees, agents and representu. :wes from any and all claims. costs. judgments awards or liability to any person arising from injury, sickness, or death of any person or damage to property: 1 For which the negligent acts or omissions of Permiltee, its agents, servants, officers or employees in performing the activities author. Ized by this Right-of-Way Use Permit are the pproximate Comm 2. By virtue or the Permitted's exercise of the dohts granted herein. compelling me Yerminee to reniuve any auur r—iti- through judicial action when the City has not permdtad the Permiltee to abandon said Facilities in place. Section 9. Conslruction Bond. Before undertaking any of the wo installation, improvements, construction, re- pair, relocation or maintenance authorized by this Right- of-Way Use Permit, the Permittee shall fumish a street repair or sidewalk bond written by a corporate surety acceptable to the City equal to at least 125% of the estimated cost of restoring9 the Public Ways of the City to the pre - construction condiition required by Section 11 of this Right- ol•Way Use Permit Said bond shall be required to remain lull force until 60 days after completion of the construction of Permitted's communication Facilities and other improvements from the Public Ways of the City, and said bond, or separate bond acceptable to the City, shall warrant all such restoration work for a period of two years. In the event that a bond issued to meet the requirements of this Section is canceled by the surety, after proper notice and pursuant to the terms of said bond, Permiltee shall, prior to expiration of said bond, be responsible for obtaining a replacement bond which complies with the terms of this SecMMtiggo��n((��gg Section 20. M4dit1eaQ2L The City and the Permitted ; hereby reserve M nghht to after, amend or modify the terms and conditions of this night- of•Way Use Permit ! ur�on the written agreement of both parties to such alteratlon, amendment or modification. Said modifications shall be approved by the City by ordinance and accepted by the Permitted consistent with Section 32 hereof ggdeCclionion 21. Foriolture and Revocation. If the Permiltee wd fully vrolatds or air s to comply wim any of the material provisions of this Right -of -Way Use Permit, or through willful misconduct or gross negligence fails to heed or comply with anyy notice given the Right-of-Way Use Per• milted by the Clly under the provisions of this Right•of• Way Use Permit, then the Permitted shall, at the election of the City Council, forfeit all rights conferred hereunder 1 and this Flight -ol -Way Use Permit may be revoked, termi- nated or annulled by the City Council after a hearing held upon reasonable written notice to Permitted The City Council may decide, after consideration or the reasons lot the Permitted's failure to comply with the Rrght•of•Way Use Permit, to allow the Permitted additional time to cure ; before such termination or revocation, The City may elect, in lieu of the above, and without prejudice to any of its other legal rights and remedies, to obtain an order from i the superior court having jurisdiction compelling the Per• mittee to comply with the provisions of this Right -of -Way Use Permit and to recover reasonable and documented damages and costs incurred by the City by reason of the permitted's failure to comply. SoC1to0.22 ClIv Or inan end Qeaulntlanss Nothing herein shall bedeeema to direct or resfnct the City's abil• ity to adopt and enforce all necessary and appropriate ordinances regulating the performance of the Conditions of this Right-of-Way Use Permit, including any valid ordi. nanee made in the exercise of its police powers in the interest of public safety and for the welfare of the public The City shall have Iha authority at all times to control by appropriate regulations the locations elevation, manner or constriction and maintenance of any Facilities by the Permittee, and the Permitted shall promptly conform with all such regulations, unless complian a would cause the Permittee to violate other requirements Y the law tion 23 .urviva!; All of the provisions, conddiens, an requiremerts this Right-of-Way Use Permit shall be In adds inn to any and all other obligations and aabrhhec the Permitted may have to the City at common law. by statute. or by contrart The provisions, conditions, and requirements of Sections 7. Refr ccgUon of ^Onimul patio ) S tprh, 9, Wo% in Publit,�Ways. 10 [kNq_rA10 alter onslS!ction, T'. Tlangeroi!s C;orid,tinn% u)honly giii (:qty tQAb 1% 16, Ir1,dg(PnifigMLq n Wive 17, n ante, a�PB, �b m nt dMen1oy@I o the er il'_4 Co.1J,murc h , smell survive the expiration or termination of 1 s fight -of -Way Use Permit, and any re• nawals or extensions thereof and remain effective until such time as the Permittee removes its communication Facilities from the Public Ways, transfers ownership or said Facilities to a third party, or abandons said System in place, all as provided herein. All of the provisions, con- ditions, regulations and requirements contained in this Right -of -Way Use Permit shall further be binding upon the heirs, successors, executors, administrators, legal repre- sentatives and assigns of the Permtlen and all privileges, as well as all obligations and liabilities of the Permittee shall Inure to Its heirs, successors, and assigns equally as If they were specifically mentioned wherever the Permittee Is named herein. S_Q�tigq 224, $gveraa4d t . In any section, sentence, clause, or pphrase of tTiisght•ol•Way Use Permit should be held to be invalid or unconstitutional by a court of com- petent jurisdiction, such invalidity or unconstitutionality shall not affect the validity or constitutionality of any other section, sentence, clause, or phrase of this Right-of-Way Use Permit. a9Sjio si nmQM This agreement may not be assigned or transferred without the written approval of the City, which approval shall not be unreasonably withheld or delayed, except that the Permittee may freely assign this Right- ol•Way Use Permit in whole or part to a parent, sub- sidiary, or affiliated corporation or as pan of any corporate linenCing, reforpan zatrRn or refinancing. In the case of transfer or assignment as security by mortgage or other security instrumant in whole or in part to secure indebt- edness, such consent shall not be required unless and until the secured party elects to realize upon the collateral. The Permittee shell provide prompt, written notice to the Cit of any such assignment ti 2' o i Any notice or informntion required or permate to a .wen to the parties under this Rghl•of- Way Use Permit may be sent to the following addresses unless otherwise specified ��i=y, P mitt 9, mot Edmonds IC- Cream Director of Community Services PCS III Corporation 121 51h Avenue N 12920 SE 38th Street Edmonds, WA 98020 Bellevue, WA 98006 425 771.0220 Atim Leasing Administrator Fax, 425-771-0221 With Copies 10 VoiceSlream PCS III Corporation 19807 North Crook Parkway North Bothell, WA 98011 Ain Lease Administrator Notice shall be deemed given upon receipt in the case of Personal delivery, three days alter deposit in the United States Mad in the case of regular mad, or the next day in the case of overnight delivery Iig 27- Fn1!mRjflhl-ol-WPY 1V1i PermmA This Right - 01• ay Use Permit constitutes Cho entire understanding and agreement between the parties as to the subject matter herein and no other agreements or understand- ings, written or otherwise, shall be binding upon the parties upon approval and acceptance of this Right•ol- Way Use Permit $�ction 2Q At(pl Py' -s Feed, 11 any suit or other action rs instituted in connection with any controversy arising under this Right -Of -Way Use Permit, the prevailing parry shall be entitled to recover all of its costs and expenses including such sum as the court may judge reasonable for attorneys fees, including fees upon appeal of any judge- ment or ruling. JesIion 2� Ng0- aiygr Failure of the City to decla e any sue' rase i�orr rlefatijt immediately upon the occur- rence thereof, or delay in taking any action in connection therewith, shall not waive such breach or default, but the Cityy shall have the right to declare any such breach or default at any time Failure of the City to declare one breach or default does not act as a waiver of the City's right to declare another breach or default ; 5V 30, ft inQLawIV nua This Right-of-Way Uso ermit Shat a governed y and construed in actor- dance with the laws of the Stale of Washington. The ven- ue and jurisdiction over any dispute related to this Right- of-Way Use Permit shall be with the Snohomish County Superior Court ,Sg&b__on__ 1_. toplano, Within 60 days ever the pas. sage and of this ordinance, this Right -of -Way Use Permit may be accepted by Permitted by its filing with the City Clerk an unconditional written acceptance thereof. Failure of the Permittee to so accept this Flight-64-Way Use Permit within said period of time shall be deemed a rejection thereof, and the rights and privileges herein granted shall, after the expiration at the 60 day period, absolutely cease and determine, unless the time period is extended by ordinance duly passed for that purpose Ll. dy Virtue of the Nermktee's exercise of the i rights granted herein; 3. By vinua of the-City's permitting Perminee's use of the City's Public Ways or other public { 4. Basad on the City's Inspection or lack or'' . inspection of work performed by Permillee, Its agents and servants, officers or employees in connection with work authorized on the Public , j Ways or property over which the City has E , control pursuant to this Right-ol•Way Use Permit or Pursuant to any other Right -of -Way Use Permit or approval Issued In connection 5. Arising as a result of the negligent acts or omissions of Permitee, Its agents, servants, officers or employees in barricading, instituting . trench safety systems or providing other ado - tto warnings of any excavation, construe , or work upon the Public Ways, in any pub- lic way, or other public piece In performance of work or services permitted under this Righl -of . Way Use Permit, B. The provisions of Subsection AV this Section- Shelf apply to claims by Permlltee's own employees and the employees of the Permittdes agents, representatives, 1 contractors, and subcontractors to which Par""lee might I otherwise be Immune under Title 51 HCW. This walver of immunity under Title 51 RCW has been mutually n tpoli- ated by the parties hereto, and Permittee acknowledges that the City would not enter Into this Right -of -Way Use Permll without Permideo's waiver thereof C. Inspection or acceptance by the•Clty of any work performed by the Permittee at the time of completion -of. Construction shall not be grounds for avoidance of any of these covenants of indemnification. Provided that Permit- tee has been given prompt written notice, by the City of 'any such claim, said indemnification obligations shall . extend to claims which are not reduced to a suit and any claims which may be compromised with' -Perr ilea's' consent prior to the culmination of any litigation or fee Insfitullon of any Iillgalion, The City has the right to defend A participate in the detente of any such claim, and has ' the right to approve any settlement or other compromise. of any,such claim, provided that Parmlltee shall not be liable for such settlement or other compromise unless it - has consented thereto. D: in the event that-Permittee refuses the lender of defense in any suit or any claim, said tender having been. made pursuant to this Section, end said refusal Is subse- quently determined by a court having judsdlotion (or such other tribunal that the parties Shall agree to the matter), to I have been 'a wrongful refusal on tie pan of the Permillee, ' 'Allen Permittee shall pay all of the City's costs for defense Of the action,•including oil reasonable expert witness feet, reasonable attorney's lees , the reasonable, costs of the City', and reasonable foes of recovering under this Subsection. E, The obligations of Pormttee under the Indemnf- Yicatron provisions of this Section shall apply rapardless of whether liabfIlly for damages arising out of bodily Injury 10 persons d to b or damages Cgens olticersenri ants, employees ern on- -tractors except .6 file extent that such claims, actions; damages, carts, • expanses, and Attorneys fees were caused by the negliggonce or any willful or malicious action on the pert of the Clty, its officers, agents, employees or , contractors, In the event that a court of Competent juts- diction determines that this R(ght•of -Way Use, Permit Is subjecttothe provisions RCW 4.24.1.15, the parties agree . thet the indemnit provisions hereunder shall be deemed amended to conform to'serd statute and liability shall be rallocated as provided. therein. q F •Notwithstanding any other prowslons,of this Sec- `ifon, Parmitiee assumes the risk of damage 10 Its com- 'munleati0n Facilities located in the Public Ways and upon City-owned property from such activities conducted by the 'City, Its officers, Agents, employees 'and Contractors, ex -. ceptlto the extent any Such damage or destruction Is caused by or arises from the negligence or any willful or malicious action on the pert of.the Clty, its officers, agents, employees or contractors. Permittee releases and wolves "Any and ,all Stich "claims against the City, its officers, , agents, employees or contractors:. Parmfftee further , agrees to indemnify, hold harmless and defend the City i against any claim, for damages, Including, but not limited to, business Interruption damages and lost.profils, brought r, by or under users of Pernlittee's.Facilities As the result of t any interruption of service.due -(o damage or destruction i of Permlttee's Facilities Caused .by or arising out of activities conducted by the City, Its officers, , agents, employees or contractors; except to the extent any such damage or destruction it Caused by or arises from the negligence or any willful or malicious actions on the part of ; the City, Its officers, agents, employees or contractors, Section 17. Insurance. The Permittee shall procure and maintain insurance against claims for Injuries to persons j or damages to property which 'mey also from or in Connection with . the exerolsa•of the rights. privileges and f authority granted hereunde rib the Permittee its agents, .ppretehtalives or emcloveQ� The Permittee shall provide + 10 the City an Insurance certificate naming the City As an Addilionni insured for tit inspection prior to Ina tom• jmencement of any work or installation of any Facilities pursuenl to this RIqht•of -Woy Use Permit. Such Insurance r certificate shall evidence: A. Comprehensive general liability Insurance. written ' ;on an occurrence basis. including,contractust liability• coverage with limits not less than: (1) "53-000,000.00 -for bodily injury or, deAth Io • ench person: and (2) 'S0.000.000.00 for properiy damage resulting . from any one accident - (• B. Automobile ,liability for owned. non -owned and hired vehicles with a limit of $3.000.000.00 for ench person and $3.000.000 00 for each accident, C. Worker's compensation within statutory limits and ar amployors liability insurance with limits of not less than l S1 ,000 000 0 The liability insurance policies required by this Section Shall be maintained by the Perni throughout the term' t of this Right-of-Way Use Permit, and such other period of . time during Which the Permittee is operating wilhout a •� Right- ol•Way Use Permit hereunder, or is engaged in the temoval of its Communication System. Payment of deduc- tibles and sell•tnsured retentions shall be the sole raspori- sibillty of the Permittee:. The insurance certificate required by this Section shall contain a clause stating that the .coverage shall Apply separatelyy to each insured against whom a claim Is mada.or Sult Is brought, except with ' respect to the limits of the insup" liability. The Permit• lee s insurance shalt be pelmary, insurance with respect to the City, Any insurance maintained by the City, its officers, oltcials, employees, consultants, agents, and volunteers rl shall be In-excess of the Permlltee's insurance and Shall not cohtnbute With it In addition to the Coverage requiremanls set fodh In this Section, the insurance certificate required by INS Section ,shall contain language which provides that the policy may pnol be canceled, reduced in coversgga.. -nor- -the intention not to renew be staled until at least 30 dnys after receipt by the Oily. of wrlllen notice of the some via U.S. mall. ! Within•15 days alter recelpt by the City o1 said notice, and,- In no event later than 5 days prior to said cancellation or tlon•reneWal, the shall obtain and furnish to the City - replacemeht insurance cortificate(s) meeting the require- _,,. _ the City within 9D days of reeeivino notice Irom Iho r Community Services Director, Provided, however, that the City may permit the PermitteW9 improvements to be abandoned and replaced in Such a manner AS the parties shat agree, subsequent always to the City's standard construction.requirements for Rlghl -,of-Way use, Upon ' permanent abandonment, and Permit tee's.noreenient to 1. transfer ownership of the communication 'Facilities to the City, the Permittee shell submit to the City A proposal and 1 instruments for transferring ownership to the City. Any such'Facililles which are not permitted io be Abandoned in t place which are not removed.within ninety (90) days of recetpl of said; notice shall automatically become the t prOpor(y of the City. Provided, however, that noticing contained within this $potion• shall prevent the City from comaellino the Permittee to remove Anv such Knriltliec ,, r �•� +, „a wuensunaory wnnnew or ,.l delayed, e �„ v, except that the Permutes may floely assign this Ripht•o1•Wayy Use Parretti in whole or part to A parent, sub- sidiary, or.atfiAaled corporation or as part of any corporate Iinencing, reorpanizayn or refinancing. In the case of frontier or assignment as security by mortgage or other N security instrument in whole or In part to secure indebt• 1 ednoss, such consent shall not be required unless and r until the secured pang elects to realize upon the collateral I1� The Permittee shall provide prompt, written notice to the Ip Of of any such assignment, clian -7.8 Any notice or Inform rar�uirad J! or perm rte to a given to the parties under this Right -of- ' Way Use Permit may be tom to the following addresses unless Otherwise Spaclliad: orm.�ttg�, f V I S d e,1 Edmonds o ce beam Olra,I Of :ammuhity Services PCS III Corporation 121 5th Avenue N. 12920 Sr 38th Street Edmonds, WA 98020 "Bellevue, WA 980D6 425 771.0220 Attar Leasing Adminlstraior 1 Fax: 425.771.0221 f. With Copies to: VoiceStream PCS III Corporallah 19807 North Crook Parkway North k Bothell, WA 98011 it Attn: Lease Administrator Nolice shall be deemed given upon rocelpt in the case of personal delivery, three days after deposit in the Uniled States Mail In the CASH of regular mail, or Ile next day In ' i, the case of overnight delivery. e 1 7 Entire Richt-ot-W P prmit This Right - of• d set emir constitutes the entire undorStanding ,end agreement between the patties as to the subject manor herein and no other agreements or understand- f i- iri written or otherwise, shall be. binding upon the pparties upon approval and acceptance of this Right -ol• tAln , I ran Dee t It tt r 11 any suit or other action is nstituted n Connection -- with any controversy arising under this Right•ol•Way Use Permit, the prevailing party shall be entitled IO recover all Of its costs and expenses- Including such sum as the Court may judge reasonable for + attorneys fees, Including fees upon appeal of any judge- ment or ruling, 8" r w I Failure or the City to declare eny sue reach or c au l immediately upon the occur• - rence thereof, or dolay In taking any action in connection - therewith, shall not walve such breach or default, but the Cityy shall have the right to declaro any such breach or �delault at any time. Fallure,.of the City to declare one branch or, delault does not act as a waiver of the City's right to declare another breach or default, • Section r QQ. 0oyerrllna Lew/Venue, This Riahl- of•Wav 1 a� I , Al CI rmn shall oe governed 'by and consitued.in Actor -.t vithdhe laws of the State of Washington. The van- , jurisdiction 'over any dispute related to this Right. r Use Permit shall be with ilia Snohomish County` r� nC�3o�u��rt - Accentgir , Within 60 dayys after iha bri�as• 1e, approval of this ordinance: Ibis Right-Wayy i mit may be accepted by Permlltoe by Its filing wilh Clerk an unconditional written AOC4n1Anv.A thAmnl sd.shatl, after the axpirnton of the. 60 day,period, utely cease and determine, unless the time period is - ded by ordinance duly passed for that purpose: i r 3? Ffl-ective Cato, This ordinance, being en Ise of a power,speei ical y. delegated to the Cily leg• r e body, is not Subject to referendum, and shall take 5 days after. ilia passage and publication 61 An ved summary thereof congistingg of the title. ' CITY OP EDMONOS MAYOR IGA14Y HAAKENSON ST /AUTHENTICATED: t • CLERK SANDRA S; CHASE" ED BY THE. CITY COUNCII -. 09/16/2002 lied: October 23, 2002,