Ordinance 344100006.9000000
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7/19/02
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ORDINANCE NO. 3441
AN ORDINANCE OF THE CITY OF EDMONDS,
WASHINGTON, GRANTING TO AT &T WIRELESS
SERVICES OF WASHINGTON, LLC, AN OREGON LIMITED
LIABILITY COMPANY, DB /A AT &T WIRELESS BY AT &T
WIRELESS SERVICES, INC., A DELAWARE
CORPORATION, ITS MEMBER, A MASTER USE
AGREEMENT, TO INSTALL, OPERATE, AND MAINTAIN
WIRELESS COMMUNICATION FACILITIES WITHIN A
CERTAIN DESIGNATED PUBLIC RIGHT -OF -WAY OF THE
CITY OF EDMONDS, STATE OF WASHINGTON,
PRESCRIBING CERTAIN RIGHTS, DUTIES, TERMS, AND
CONDITIONS WITH RESPECT THERETO, AND
ESTABLISHING AN EFFECTIVE DATE.
WHEREAS, AT &T Wireless Services of Washington, LLC, an Oregon Limited Liability
Company, d/b /a AT &T Wireless by AT &T Wireless Services, Inc., a Delaware corporation, its
member ( "AT &T Wireless Services," or "Permittee ") has requested that the City of Edmonds
( "City ") grant it the right to install, operate, and maintain wireless communication facilities
( "Communication Facilities," as further defined hereunder) within the public ways of the City;
and
WHEREAS, the City Council has found it desirable for the welfare of the City and its
residents that a Master Use Agreement ( "Agreement ") to address the installation of multiple
Communication Facilities in the public ways be granted to AT &T Wireless Services, and
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WHEREAS, the City Council has the authority under RCW 35A.47.040 to grant such
Master Use Agreement and any appropriate installation and maintenance permits ( "Permits," as
further defined hereunder) as may be required to address the installation and maintenance of
specific Communication Facilities in the streets and other public properties of the City; and
WHEREAS, the City is willing to grant the rights requested subject to certain terms and
conditions, NOW, THEREFORE,
THE CITY COUNCIL OF THE CITY OF EDMONDS, WASHINGTON, DO ORDAIN
AS FOLLOWS:
Section 1. Definitions. For the purposes of this Master Use Agreement, 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 Facilities, either directly or as a carrier for its subsidiaries, Affiliates, or
any other person engaged in telecommunication 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 Service 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 Facilities" or "Facilities" shall mean the Permittee's (or
other valid Permit holder's) wireless communications installations and attendant
structures constructed and operated within the City's Public Way (as defined below), 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. This definition shall include such
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facilities as initially installed and any additional facilities as are approved pursuant to
Chapter 20.50, Wireless Communications Facilities, of the Edmonds Community
Development Code and which are allowed pursuant to an associated Construction Right -
of -Way Use Permit, as defined immediately below.
e. "Right -of -Way Construction Permit" and "Street Use Permit" or "Permit"
shall mean that permit required of AT &T Wireless by the City in order to (i) install new
Facilities, (ii) perform routine maintenance activities as to existing Facilities, or (iii) to
acknowledge Permittee's access to its Facilities after the fact, immediately following
resolution of emergencies having necessitated Permittee's immediate access of its
existing Facilities, within the public ways of the City, pursuant to EMC Chapter 18.60.
Upon issuance of each Permit by the City in accordance with this section, the parties shall
attach to this Agreement a copy of each said Permit (in the standard form attached hereto
as Exhibit "A," and which is incorporated herein by this reference).
f. "FCC" means the Federal Communications Commission, or any successor
federal governmental entity hereto.
g. " Permittee" means AT &T Wireless Services, or the lawful successor,
transferee, or assignee thereof.
h. "Person" means an individual, partnership, association, joint stock
company, trust, corporation, or governmental entity.
i. "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
Communication Facilities. Public Way also shall 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 Service over poles, wires, cable, conductors, amplifiers, appliances,
attachments, and other property as may be ordinarily necessary and pertinent to the
Communication Facilities.
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 set
forth, the right, privilege, and authority to construct, reconstruct, upgrade, expand, operate,
maintain, replace, and use all necessary equipment thereto necessary for the operation of
Permittee's Communication Facilities. However, the Permittee is only authorized to place its
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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 Permittee shall apply for and obtain a Construction Right -of-
Way Construction Permit and a Street Use Permit pursuant to EMC Chapter 18.60 and 18.70. In
some situations, new or replacement structures may be required to obtain a Conditional Use
Permit depending on their size and location.
B. Unless otherwise provided in said Permit, the Permittee shall give the City at least
forty -eight (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 Construction and Street
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 Permit, except as
otherwise provided in this Master Use Agreement.
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 Master Use Agreement. The term of this Master Use Agreement
shall be for a period of TWENTY (20) years from the date of acceptance as set forth in Section
32, unless sooner terminated.
Section 6. Non - Exclusive Grant. This Agreement shall not in any manner prevent the
City from entering into other similar agreements or granting other or further master use
agreements, 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 Agreement 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.
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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 and prior written notice, in non - emergency situations at least
thirty (30) days notice by 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 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 its Facilities unless the Permittee's as -built plans and maps of its Facilities
submitted pursuant to Section 9 of this Agreement are reasonably determined by the Community
Services Director to be inadequate for purposes of this paragraph. The decision to require
relocation of 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
ninety (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.
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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 ten (10) days
prior to commencement of the project. In the event of an emergency as described
herein, the Permittee shall relocate its Facilities within a reasonable 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.
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 Mans 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 Ways. During any period of relocation, construction, or
maintenance, all surface structures, if any, shall be erected and used in such places and positions
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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 Agreement 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 one (1) year.
If either the City or the Permittee shall at any time after the initial installation of the
Facilities plan to make excavations in area covered by this Agreement 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 arranged and accomplished on terms and conditions
satisfactory to both parties;
C. Either party may deny such request for safety reasons or if their respective uses of
the trench are incompatible, and
D. Such joint use shall not interfere with the 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 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
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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 one (1) year.
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, cease 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 otherwise required under this Agreement. However, this shall not relieve the
Permittee from the requirement of notifying the City of the emergency work and obtaining any
Permits necessary for this purpose after the emergency work. The Permittee shall notify the
City by telephone immediately upon learning of the emergency and shall apply for all required
Permits not later than the second succeeding day during which the Edmonds 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 Agreement 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 and Right -of -Way
Use Permit fees associated with activities undertaken through the authority granted in this
Agreement 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
Agreement, or any ordinances relating to any subject not addressed in this Agreement, the
Permittee shall reimburse the City directly for any and all reasonable costs, after receipt of an
itemized bill.
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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.. 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 Permittee 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 under this Master Use
Agreement:
A. For the purposes of this section, "New Support Structure(s)" means a monopole,
lattice tower, or similar structure erected solely for the purpose of installation of wireless
antennas in the Right -of -Way where previously no similar structure had existed.
B. For the purposes of this section, "Existing Support Structure(s)" means existing
utility poles, light poles or other similar approved structures that exist in the Right -of-
Way that can be used to support wireless antennas.
C. For the purposes of this section, "Replacement Structure(s)" means a structure
that is similar to an Existing Support Structure, but either taller and/or stronger than a
Existing Support Structure, and which replaces an Existing Support Structure for
purposes of placement of wireless antennas.
D. The compensation provided for in Subsection "F," below, shall be adjusted
annually, each year of the first ten -year term, by an increase of five percent (5 %) . The
parties shall meet in the tenth (10th) year to revisit the provisions of this section and
Section 17, Insurance, to establish appropriate and reasonable levels of compensation,
annual adjustments thereto, and insurance, consistent with that charged by comparable
local jurisdictions. Neither party shall unreasonably withhold its acceptance and approval
of a reasonable adjustment to the level of compensation so proposed by the other party
under this section. Permittee shall pay prorated compensation commensurate with the
charges of comparable production for any given Facility in the Right -of -Way in any
given year prior to beginning its installation activities within the applicable Right -of-
Way; thereafter, as to each Facility existing within the Right -of -Way, Permittee shall pay
annual compensation prior to the 15th of January of each year of this Agreement.
E. In the event that the Permittee's Facilities 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 Facilities are out of service shall be provided on the
subsequent year's compensation.
F. In consideration for the use of the Right -of -Way, Permittee shall commit to
providing an annual payment for each approved Facility reflected on the attached Exhibit
"A." The amount of the annual payment for the first ten -year term shall be as follows:
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1. Antennas placed on a New Support Structure , equipment cabinets are in
the Right -of -Way, annual payment is Five Thousand Dollars ($5,000).
2. Antennas placed on an Existing Support Structure or Replacement
Structure , with equipment cabinet or other associated equipment located within the public
Right -of -Way, annual payment is Three Thousand Dollars ($3,000).
3. Antennas placed on an Existing Support Structure or Replacement
Structure , where no equipment cabinet or other associated equipment is located within the
public Right -of -Way, annual compensation is Two Thousand Dollars ($2,000).
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 Agreement, 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 Master Use Agreement, provided
that such expenses shall not be included in the reimbursement provisions set forth in Section 14
of this Agreement.
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 Master Use Agreement 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 that are the subject of this Agreement;
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 Agreement or pursuant to any other site -
specific Permit or other approval issued in connection with this
Agreement;
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
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public place in performance of work or services permitted under this
Agreement.
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 Agreement 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 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 , and the reasonable costs and
fees to City associated with 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 Agreement 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
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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.
G. City shall indemnify, save harmless and defend AT &T Wireless from and against
any and all injury, loss, damage or liability (or any claims in respect of the foregoing),
and costs or expenses (including reasonable attorneys' fees and court costs) arising
directly out of the sole negligence or tortious acts of the city or its employees or agents.
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 Agreement. Such insurance certificate shall
evidence:
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 Agreement, and such other period of time during which the
Permittee is operating without a or Right -of -Way Use Permit hereunder, or is engaged in the
removal of any of its Communication Facilities in the right of way. Payment of deductibles and
self - insured retentions shall be the sole responsibility of the Permittee. The insurance certificate
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12
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 thirty (30)
days after receipt by the City of written notice of the same via U.S. mail. Within fifteen (15)
days after receipt by the City of said notice, and in no event later than five (5) days prior to said
cancellation or non - renewal, the Permittee 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 Agreement, the
Permittee shall remove all of its Communications Facilities from the Public Ways of the City
within ninety (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 any 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
abandoned in place without City's consent and not removed within ninety (90) days of receipt of
notice thereof shall automatically become the property of the City, unless Permittee is prevented
from removing its Facilities by causes beyond its reasonable control including, but not limited to,
acts of God, war, or governmental restrictions. In such case, Permittee's time for performance of
its obligations under this section will be extended by a reasonable period of time, not to exceed
an additional thirty (30) days in any event, without City's consent thereto. Provided, however,
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 consented to the
Permittee's abandonment of said Facilities in place.
Section 19. Construction Bond. Before undertaking any of the work, installation,
improvements, construction, repair, relocation or maintenance authorized by this Agreement, 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 Agreement. Said bond shall be
required to remain full force until sixty (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 (2) 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
{ WSS531638.DOC;1 /00006.900000/
13
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 Agreement 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 Agreement, or through willful misconduct or
gross negligence fails to heed or comply with any notice given the Permittee by the City under
the provisions of this Agreement, then the Permittee shall, at the election of the City Council,
forfeit all rights conferred hereunder and this Agreement 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
this Agreement, 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 Agreement and to recover its
reasonable, documented damages and costs incurred by the City as a direct result of the
Permittee's failure to comply with the terms of this Agreement.
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 Agreement, 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 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
Agreement 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 Master
Use Agreement, 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 Facilities in place, all as provided herein. All
of the provisions, conditions, regulations and requirements contained in this Agreement 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
{ WSS531638.DOC;1 /00006.900000/
14
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 Agreement
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 Agreement.
Section 25. Assignment. This Agreement may not be assigned or transferred without the
written approval of the City, such approval not to be unreasonably withheld or delayed, except
that the Permittee may freely assign this Agreement, in whole or part, to any 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 otherwise provided as
between the parties under this Agreement shall be sent to the following addresses unless
otherwise specified by the parties:
City
City of Edmonds
Director of Community Services
121 5th Avenue N.
Edmonds, WA 98020
425 771 -0220
Fax: 425-771-0221
With Copies to:
AT &T Wireless Services
Attention: Legal Department
2729 Prospect Park Drive, Suite 200
Rancho Cordova, CA 95670
Permittee:
AT &T Wireless Services
Attention: Property Management
2729 Prospect park Drive, Suite 100
Rancho Cordova CA 95670
Notice shall be deemed provided upon receipt in the case of personal delivery, three (3) 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 Agreement. This Agreement constitutes the entire understanding and
agreement between the parties hereto as to the subject matter herein and no other agreements or
{ W SS531638.DOC;1 /00006.900000/
15
understandings, written or otherwise, shall be binding upon the parties upon approval and
acceptance of this Agreement.
Section 28. Attorneys Fees. If any suit or other action is instituted in connection with
any controversy arising under this Agreement, the prevailing party 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 judgment 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 Law/Venue. This Agreement 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 Agreement shall be with the Snohomish County Superior Court.
Section 31. Acceptance. Within sixty (60) days after the passage and approval of this
ordinance, this Agreement 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 Agreement
within said period of time shall be deemed a rejection thereof, and the rights and privileges
herein granted shall, after the expiration of the sixty (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 five (5)
days after the passage and publication of an approved summary thereof consisting of the title.
CITY O - EDMONDS
M OR Y HAAKENSON
ATTEST /AUTHENTICATED:
'4 � ,e e�
CITY CLERK SANDRA S. CHASE
APPROVED AS TO FROM:
OFFICE IT ORNEY:
By:
W. SCOTT SNYDER
{ WSS531638.DOC;1/00006.900000/
16
FILED WITH THE CITY CLERK: 02/14/2003
PASSED BY THE CITY COUNCIL: 02/25/2003
SIGNED BY THE MAYOR: 02/26/2003
PUBLISHED: 03/02/2003
EFFECTIVE DATE: 03/07/2003
ORDINANCE NO.: 3441
{ WSS531638.DOC;1/00006.900000/
17
SUMMARY ORDINANCE NO. 3441
of the City of Edmonds, Washington
On the 25th day of February, 2003, the City Council of the City of Edmonds, passed
Ordinance No. 3441. 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 AT &T WIRELESS
SERVICES OF WASHINGTON, LLC, AN OREGON LIMITED LIABILITY COMPANY, D/B /A AT &T
WIRELESS BY. AT &T WIRELESS SERVICES, INC., A DELAWARE CORPORATION, ITS MEMBER, A
MASTER USE AGREEMENT, TO INSTALL, OPERATE, AND MAINTAIN WIRELESS
COMMUNICATION FACILITIES WITHIN A CERTAIN DESIGNATED PUBLIC RIGHT -OF -WAY OF
THE CITY OF EDMONDS, STATE OF 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 26th day of February, 2003.
2� "Z �
SANDRA S. CHASE, CITY CLERK
{ WSS531638. DOC;1 /00006.900000/
18
"PERMITTEE"
AT &T Wireless Services of Washington, LLC,
an Oregon limited liability company, d /b /a
AT &T Wireless
By: AT &T Wireless Services, Inc., a Delaware
corporation, its member
f
By:
Print Name: 7 Louis R. Levy
Its: Im le entat' n Mana er- Western Re ion
Date: 2
ACKNOWLEDGMENT
STATE OF
ss
COUNTY OF )
I CERTIFY that on , 20 ____LOUIS _LOUIS R. LEVY_ personally came
before me and this person acknowledged under oath to my satisfaction, that:
(a) this person signed, sealed and delivered the attached document as
IMPLEMENTATION MANAGER - WESTERN REGION of AT &T Wireless Services, Inc. a
corporation of the State of Delaware, which is the member of AT &T Wireless Services of
Washington, LLC, the limited liability company named in this document;
(b) this document was signed and delivered by the corporation as its voluntary act
and deed, as the member of the limited liability mpany, on behalf of said limited liability
company.
110TAR),
�JIIIIIli11
yr�o 6 (1 q
Not ublic
My Commission Expires:
{ W S S 5 3163 8. DO C;1 /0000 6.900000/
19
1
-1, Y
City of Edmonds Permit No:
RIGHT —OF —WAY CONSTRUCTION PERMIT Issue Date: CP kA�23
A. Address or Vicinity of Construction: ftr/- IV % 7. -111` N11,a10i4- Off- %/l� . t'7r�nr�.�t�` t' 1A 9�x6zi )
B. Type of Work (be specific): r✓� v��G" J i, L. r �.� _�
C. Contractor:_ 5� �`� "-�%� i� r�I ' Co " tl'�1 � Wha6i 146-111-&39
Mailing Address:_.5.ctC70 9rcV:An So(A- ,� t�� f — Phone: <'- 4�
$CI� 331/67
State License #: S6ptN r'S 101 gL �_ Liability Insurance: Bond: $
D. Building Permit # (if applicable): Side Sewer Permit # (if applicable):
E. Commercial El Subdivision ❑ City Project ❑ EUC (PUD, VERIZON, PSE, AT& T, OVWD)
❑ Multi - Family ❑ Single Family ❑ Other
INSPECTOR:
F. PAVEMENT CUT: ❑ YES O G. SIZE OF CUT X
CONCRETE CUT: ❑ YES �NO
INDEMNITY. Applicant understands by his /her signature to this application he/she holds the City of Edmonds harmless from
injuries, damages or claims of any kind or description whatsoever, foreseen or unforeseen, that may be made against the City of
Edmonds or any of its departments or employees, including but not limited to the defense of any legal proceedings including defense
costs and attorney fees by reason of granting this permit.
THE CONTRACTOR IS RESPONSIBLE FOR WORKMANSHIP AND MATERIALS FOR A PERIOD OF ONE YEAR FOLLOWING THE FINAL
INSPECTION AND ACCEPTANCE OF THE WORK. ESTIMATED RESTORATION FEES WILL BE HELD UNTIL THE FINAL STREET PATCH IS
COMPLETED BY CITY FORCES, AT WHICH TIME A DEBIT OR CREDIT WILL BE PROCESSED FOR ISSUANCE TO THE APPLICANT.
♦ Traffic control and public safety shall be in accordance with City regulations as required by the City Engineer. Every
flagger must be trained as required by (WAC) 296 -155 -305 and must have certification verifying completion of the
required training in their possession.
♦ Restoration is to be in accordance with City codes. All street -cut trench work shall be patched with asphalt or City -
approved material prior to the end of the workday - NO EXCEPTIONS.
♦ Three sets of construction drawings of proposed work are required with the permit application.
CALL DIAL -A -DIG (1- 800 -424 -5555) PRIOR TO BEGINNING WORK
I HAVE READ THE ABOVE STATEMENTS AND UNDERSTAND THE PERMIT REQUIREMENTS AND ACKNOWLEDGE
THAT I MUST MAKE THE PINK COPY OF THE PERMIT A VAILABLE ON SITE AT ALL TIMES FOR INSPECTIONS
7131 03
Signature:
or Agent)
x FOR CITY USE ONLY
Approved by: r�ZC% _ --
Time Authorized: Void After I / / / t ?S
Special Conditions: /L-t — AH TL'V-t1-A,, e&,Lt C' 4--
��T-- 1�I,•�T' � IZvL - ('t9tr- l-Tl'"T7 'gv4z~au?i`�
0 iZ-
M
)W04p`T 01,19 gm-N-
Right -of -way Fee: ffffs
Disruption Fee/Fund III:
Restoration Fee:
Total Fee: %,�
Receipt No:
Issued by: .g
UPON COMPLETION OF PERMITTED WORK, AN
G
INSPECTION IS REQUIRED PER CHAPTER 18.00 OF THE EDMONDS
COMMUNITY DEVELOPMENT CODE (Phone 425 - 771 -0220, Ext. 1326)
FINAL APPROVAL OFPERMITTED WORK.
Inspector's Signature
DATE:
For inspection requirements see Engineering Inspection Information handout.
NO WORK SHALL BEGIN PRIOR TO PERMIT ISSUANCE
U,
4&
City of Edmonds ' Permit No:
RIGHT -OF -WAY CONSTRUCTION PERMIT Issue Date: D
A. Address or Vicinity of Construction: �1� t�' S% /'.Sfo� 'k_<4 P 2k
B. Type of Work (be specific):
Em
S
Mailing Address:-S700 4wyoyy
t ,eu. AD,. -N FL -53y8
State License #: SBA 1C/Es i q 94 L I
D. Building Permit # (if applicable): , _IIA
E. [( Commercial ❑ Subdivision
❑ Multi- Family ❑ Single Family
INSPECTOR:
F. PAVEMENT CUT: ❑ YES
CONCRETE CUT: ❑ YES
Phone: Z
M
Liability Insurance: K Bond: $
Side Sewer Permit # (if applicable): ('✓�
❑ City Project ❑ EUC (PUD, VERIZON, PSE, AT& T, OVWD)
❑ Other
G. SIZE OF CUT X
INDEMNITY. • Applicant understands by his /her signature to this application he/she holds the City of Edmonds harmless from
injuries, damages or claims of any kind or description whatsoever, foreseen or unforeseen, that may be made against the City of
Edmonds or any of its departments or employees, including but not limited to the defense of any legal proceedings including defense
costs and attorney fees by reason of granting this permit.
THE CONTRACTOR IS RESPONSIBLE FOR WORKMANSHIP AND MATERIALS FOR A PERIOD OF ONE YEAR FOLLOWING THE FINAL
INSPECTION AND ACCEPTANCE OF THE WORK. ESTIMATED RESTORATION FEES WILL BE HELD UNTIL THE FINAL STREET PATCH IS
COMPLETED BY CITY FORCES, AT WHICH TIME A DEBIT OR CREDIT WILL BE PROCESSED FOR ISSUANCE TO THE APPLICANT.
♦ Traffic control and public safety shall be in accordance with' City regulations as required by the City Engineer. Every
flagger must be trained as required by (WAC) 296- 155 -305 and must have certification verifying completion of the
required training in their possession.
♦ Restoration is to be in accordance with City codes. All street -cut trench work shall be patched with asphalt or City -
approved material prior to the end of the workday — NO EXCEPTIONS.
♦ Three sets of construction drawings of proposed work are required with the permit application.
CALL DIAL -A -DIG (1- 800 - 424 -5555) PRIOR TO BEGINNING WORK
I HAVE READ THE ABOVE STATEMENTS AND UNDERSTAND THE PERMIT REQUIREMENTS AND ACKNOWLEDGE
THA T I MUST MAKE THE PINK COPY OF THE PERMIT A VAILABLE ON SITE AT ALL TIMES FOR INSPECTIONS
_ . 713/03
Signature: �j�� -- Date :_,��
(Contractor or Agent) �� e- tr JV_ r
FOR CITY USE ONLY
Approved by: "CONwu
Time Authorized: Void After 0 / 22 11-6,03
Special Conditions: _ ML (OMt_ &L
714W. wa1114 6ff� CT 9_tsiniArfll�, R(Z{UZ To
22tdt
'-way Fee• "lO " 4 S*—:
Disruption Fee/Fund 111:
Restoration Fee:
Total Fee: °C
Receipt No: (�
UPON COMPLETION OF PERMITTED WORK, AN ENGINEERING FINAL
INSPECTION IS REQUIRED PER CHAPTER 18.00 OF THE EDMONDS
COMMUNITY DEVELOPMENT CODE (Phone 425 - 771 -0220, Ext. 1326)
FINAL APPROVAL OFPERMITTED WORK. DATE:
Inspector's Signature
For inspection
see
Information handout.
D:\My Documents \Forms\Engnmg \ROWpermit_ doc /
RECEIVED
MAR 112003
EDMONDS CiTY CLERK
Affidavit of Publication
STATE OF WASHINGTON,
COUNTY OF SNOHOMISH S.S.
T
IN
TO
WHEREAS, AT &T Wireless Services of Washington,
LLC, an Oregon Limited Liability Company, dfb /a AT &T
Wireless by AT &T Wireless Services, Inc., a Delaware cor-
poration, its member (AT &T Wireless Services," or
Permittee ") has requested that the City of Edmonds ( "City")
grant It the right to Install, operate, and maintain wireless
communication facilities ( "Communication Facilitles," as fur-
ther defined hereunder) within the public ways of the City;
and
WHEREAS, the City Council has found It desirable for the
welfare of the City and its residents that a Master Use
Agreement ( "Agreement ") to address the installation of mul-
liple Communication Facilities in the public ways be grant-
ed to AT &T Wireless Services, and
WHEREAS, the City Council has the authority under
RCW 35A.47.040 to grant such Master Use Agreement and
any appropriate installation and maintenance permits
( "Permits, "as further defined hereunder) as may be required
to address the Installation and maintenance of specific
Communication Facilities In the streets and other public
properties of the City; and
WHEREAS, the City is willing to grant the rights reppnest-
ed subject to certain terms and conditions, NOW, THERE.
FORE,
THE CITY COUNCIL OF THE CITY OF EDMONDS,
WASHINGTON, DO ORDAIN AS FOLLOWS:
Section 1. Definitions. For the purposes of this Master
Use Agreement, 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, Washinggton.
c. "Communication Service" shall mean any telecommu-
nications services, telecommunications capacity, or dark
fiber, provided by the Permittee using its Communication
4 Facilities, either directly or as a carrier for Its subsidiaries,
+ Affiliates, or any other person engagged In telecommuni-
cation services, Including, but not limited to, the trans-
mission of voice, data or other electronic information, fac-
simile 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 Service
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
se�Parate permit would be required.
d. Communication Facilities" or "Facilities" shall moan the
Permittee's (or other valid Permit holder's) wireless com-
munications Installations and attendant structures con-
structed and operated within the City's Public Wey (as
defined below), and shall include all cables, wires, con-
duits, 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. This deffnit on shall Include sued
facilities as initially installed and any additional facilities
as are appproved ppursuant to Chapter 20.50, Wireless
Communications Facilitles, of the Edmonds Community
Development Code and which are allowed pursuant to an
associated Construction Right -of -Way Use Permit, as
defined immediately below.
e." Right -of -Way Construction Permit" and' Street Use
Permit'. "Permit" shall mean that permit required of
AT &T Wireless by the City In order to (t) install new
Facilities, (II) perform routine maintenance activities as to
existing Facilities, or (ili) to acknowledgge Permlttee's
access to its Facilities after the tact, immediately following
resolution of emergencies having necessitated
Permittee's Immediate access of Its existing Facilities,
within the public ways of the City, pursuant to EMC
Chapter 18.60. Upon issuance of each Permit by the City
In accordance with this section, the parties shall attach to
this Agreement a copy of each said Permit (in the Stan-
dard form attached hereto as Exhibit "A," and which is
incorporated herein by this reference).
f. "FCC" means the Federal Communications
Commission, or any successor federal governmental
entity hereto.
g ermltte.. means AT &T Wireless Services, or the
lawful successor, transferee, or assignee thereof.
h." Parson" means an individual, partnership, associa-
tion, joint stock company, trust, corporation, or govern-
mental entity.
t. "Public Wav" shall mean the surface of, and any space
above or below, any public street, hlgghway, 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
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. 3441
AT &T Wireless Services of Washington
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:
March 02, 2003
and that said newspaper was regularly distributed to its subscribers during all of said period.
erk
Subscribed and sworn to before me this
ay of a h 003
;o�,�40'TARY��N'. I�
ota Public in and for the Stale of ashington, ,esidit at Ev x9homiSl
Co y'
OFWas`��
rvumoer: 11.11416 uraer rvumoer: 0001013004 Invoice Number: 101013004- 03022003
wmm�eercxr, or arty successor moral governmerRni
entity hereto.
p,�ermittee" means AT &T Wireless Services, or the
u successor, transferee, or assignee thereof.
h.' Person' means an Individual, partnership, associa-
tion, jofnt stock company, trust, corporation, or govern-
mental anIfttyy
I. ' Public Wa "shall mean the surface of, and an space
above or below, any public street, hfgghway, freeway,
bridge, path, alley, court, boulevard, atdswalk, parkway,
lane, drive circle, or other public right -of -warY, including,
but not limited to, public utility easements, utility strips, or
rights -of -way dedicated for compatible uses and any tem-
porary 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 Installlnp operating, repair-
ing, and maintaining the Communication operating, Public
hold by balso he City mean ithin the 3 Service Area for the putpaose
of public travel, or for utility or public service use dedicat-
ed for compatible uses, and shall Include other ease-
ments 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 Service over poles, wires.
cable, conductors. amplifiers, appliances, attachments,
and. other property as may be ordinarily necessary and
§�elrnen.2l t,o the Communication Facilities.
P Attthf7tlgC GI8 141 The Cily hereby grants to
;he Permittee, its heirs, eucceseors, legal representatives,
And assigns, subject to the terms and conditions hereinafter
let forth, the right, privilege, and authority to construct,
siconstruct, upgrade, expand, operate, malntaln, replace e,
And use all necessary equipment thereto necessary far th
fppo Ion of Permittee a Communication Facilities,
4owevor, the Permittee Is only authorized to place Its
ommunication Facilities in, under, on, across, over,
Vuph, along, or below the Public Way of the City
er'bed in Exhibit *A" hereto.
�
Section 3. Construction Rlghtof•Wav Use Permit
g� s
� to site - specific location and installation of any par.
Ion of Its Communication Facilities within a public wayy, the
�ermfttes shall apply for and obtain a Construction Righl-
if -Way Construction Permit and a Street Use Permit pur-
Iuant to EMC Chapter 18.60 and 18.70. In some Situations,
few or replacement structures may be required to obtain e
; odditional Use Permit depending on their size and loca-
ion.
B.Unless otherwise provided In cold Permit, the Permittee
Ahall give the City at least forty-eight (48) hours notice of
he Permittee's intent to commence work In the Public
Nays. The Permittee shall file plans or maps with the City
rowing the proposed location of Its Communication
"clliliee and pa all duly established Right -ol -Way
onetruction and Street Use Permit and inspection fees
Associated with the processing of the Right -of -Way Use
iiermit. In no case shall any work commence within an
)ublic way without said Permit, except as otherwise provid-
Id in this Master Use Agreemeent.o
can-
rined rg ultt or any
ght,
title, or Interest In the Public Ways of the City to the
3ennittee, nor shall anything contained herein constitute a
warranty of title.
S 3 arm of_Master Use Agreemen( The term of
N ester se Agreement shal a Zor a period of TWEN-
ry (20) years from the date of acceptance as set forth in
Section 32, unless sooner terminated.
Section 6. d9J1 -.0 This Agreement shall
lot in any manner prevent the 1ty from entering Into other
Ali agreements or granting other or further master use
Agreements, Right -of -Way Use Permits, or franchise in,
znder, on, across, over, through, along or below any of said
subic Ways Of the City. However, the City shall not permit
Any such future Permittee or Franchisee to physically Inter•
are with the Permittee's Communication Facilities. In the
Kent that such physical Interference or disruption occurs,
he Community Services Director may assist the Permittee
Iii such eubsequent Permittee or Franchisee In resolving
die dispute. Further, this Agreement shall In no way graven
Or prohibit the City from using any of Its Public Ways or
affect Its jurisdiction over them, or any part of them, and the
ytty shalt retain power to make all necessary changes, rele-
WIons, repairs, maintenance, establishment• improvement,
ledication of the same no the City may deem fit, Including
the dedication, establishment, maintenance, and Improve -
'nent of all new Public Ways, and In compliance with
Section 7, below.
Section 7. Relocation ofCgmmynjca
A.The Permittee agrees and covenants, m tts'sole cost
Ind expense, to protect, support, temporarily disconnect,
blocate, or remove from any public way any portion of Its
.ommunication Facilities when so required by the
"ommunity Services Director by reason of traffic condi-
8ons, ppublic safety, dedications of new Public Ways and the
astablishment and Improvement thereof, widening and
Improvement of existing Public Ways, street vacations, free-
way construction, change or establishment of street grade,
)r the construction of any public improvement or structure
)Y any governmental agency acting in a governmental
:apedry provided that the Permittee shall in all cases have
the privilege to temporarily relocate, In the authorized por-
tion of the Same or similar public way upon approval by the
:ommunlItlyy Services Director, any section of cable or any
)that tacit fry required to be temporarily disconnected or
lomoved.
Upon the reasonable request and prior written notice, in
ron- emergency situations at least thirty (30) days notice by
e Community Services Director and In order to facilitate
he design of City street and right-of-way Improvements, the
sermittee agrees to, at Its sole cost and expense, locate,
And It reasonabty determined necessary by the City, to
excavate and expose portions of Its Communication
°acilitles for inspection so that the location of same m b
liken Into account In the Improvement design, PROVIDay ED e
tit, Parmittets shall not be required to excavate and
lxpose its Facilities unless the rmllles's as -built plans 0
And maps of Its Facilities submitted pursuant to Section 9 of
his Agreement are reasonably determined by the
lommunity Services Director to be Inadequate for purpos-
Is of this paragraph. The decision to require relocation of
laid Facilities in order to accommodate the City's improve -
hents shall be made by the Community Services Director
ipon review of the location and construction of the
)ermittee's Facilities.
It the Community Services Director determines that the
)roject necessitates the relocation of the Permittee's then
Axisting Facilities, the City shall:
1. Within a reasonable time, which sbail be no less than
30 days, prior to the commencement of such Improve-
ment project, provide the Permittee with written notice
requir ng such relocation. In the event that such reloca-
tion requires land use approvals by the City such
notice period shall be extended by an additional ninety
(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 finan-
cial 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 locatlon for
the Permittee's Facilities so that the Permittee may
relocate Its Facilities in other Public Ways in order to
accommodate such Improvement pro1'act.
3. The Permittee shall complete relocation of Its Facilities
at no charge or expense to the Cary so as to accom-
modate the Improvement project at least tan (10) days
prior to commencement of the project. In the event of
an emergency as described herein, the Permlfloe shall
relocate its Facilities within a reasonable time period
specified by the Community Services Director.
The Permittee may, after receipt of written notice request-
00 s relocation of its Facilities, submit to the City written
ternatives to such relocation. The City shell evaluate such
ternatives and advise the Permittee in writing If one or
ore of the alternatives is suitable to accommodate the
Ork which would otherwise necessitate relocation of the
Icllities. If so requested by the City, the Permittee shall
ibmit additional Information to assist the City in making
ich evaluation. The City shall give each alternative pro -
)sed bbyy the Permfttee full and fair consideration, within a
lsoneble time, so as to allow for the relocation work to be
trformed In a timely manner, In the event the City ultl-
afternatives to such relocation. The City shall evaluate such
alternatives and advise the Permiftee 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 gIva each alternative Pro-
posed 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 ulti-
mately determines that there Is no other reasonable alter-
native, the Permittee shall relocate Its Facilities as other•
wise provided In this Section.
The provisions of this Section shall In no manner pre-
clude or restrict the Permittee from making any arrange-
ments it may deem appropriate when responding to a
request for relocation of Its Facilitles by any person or entl-
ty other than the City, Wvhere the Facilitles to be constructed
by geld 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 pro) -
ect.
B. Except as provided In Section 16 (E), the Permittee will
Indemnity, hold harmless, and pay the costs of defending
the City against any and all claims, suits, actions, damages
or IlabilHas 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 ripht•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
st.al. (or successor statute), the provisions of the statute
shell control and the terms of this section shall be amend-
ad to be in conformance thereto.
71113 PeTMi10 tdBG�®nd ABGS2[dt#, After
construct on la complete, the Permittee shall provide the
Clry with accurate copies of all as•bulit 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
formal specified by the Community Services Director.
l �" W9lork b Public Wayg, During any period of
reocation, construction, or maintenance, all surface struc-
tures, If any, shall be erected and used In such places and
positions within said Public Ways and other public proper -
Iles so as to Interfere as little as possible with the free pas-
sage of traffic and the [me use of adjoining property, The
Permittee shall at all times post and maintain proper barrf-
codes and comply with all applicable safety regulations dur-
ing such period of construction as required by the ordl-
nances of the City or the laws of the State of Washington,
Including RCW 39.04.100 for the construction of trench
safety systems.
During the progress of the work, the Permiteo shall not
unnecessarily obstruct the passage of proper use of the
Public Ways, and all work by the Permittee in the area oov
Bred by this Agreement 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 one (1) year.
If either the CGity or the Permittee shall at any time after
the initial Installation of the Facilities plan to make excava•
lions In area covered by this Agreement and as described
In this Section, the party planning such excavation shall
afford the other, upon receipt of written request to do so an
opgortunity to share such an excavation. PROVIDED TPAT:
A.Such joint use shall not unreasonably delay the work of
the party causing the excavation to be made or unrea.
sonably Increase Its costs;
B.Such joint use shall be arranged and accomplished on
terms and conditions satisfactory to both parties;
C. Either party may deny such request for safety reasons
or if their respective uses of the trench are incompati-
ble, and
D.Such joint use shall not Interfere with the operation of
the Communication Facfllty.
The joint use provisions of this Section shall apply only to
lotnt 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 exca•
vations.
S9.rja ia14. fleSl lian.n on!s _Ccnstryt=relo The Permittee
shall, after instal anon, conelructlon, relocation. mainte-
nance, removal, or repair of its Communication Facilities
within the Public Ways, restore the surface of said Public
Ways and any other CI owned property which may be dis-
turbed by the work, to 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 rasters -
Hon, all In accordance with the Edmonds City Code and
Public Works Construction standards. All survey monu.
ments 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 specifica-
tions. 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 coat and expense accordln�� to the time and terms
specified In the Construction Right -of -Way Use Permit
Issued by the Cl, all In accordance with the applicable pro-
visions of the Eddmonds 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 one (1) year.
Sacs Emem — _J9IgllLgf-•Ylta1L Q
in the event ofany a ergency In which any
of t e Permittee's Communication Facilitles located in,
above, or under any public way breaks, era damaged,
cease to provide service, or If the Permitlee's construction
area is otherwise In such a condition as to immediate
endanger endanger the property, life, health, or safety of any indivkf-
uel, the Permittee shall Immedlately take the proper emer-
i�ency measures to repair its Facilitles, to cure or remedy
1he dangerous conditions for the protection of property, life,
health, or safety of Individuals without first spotyyIng for and
obtaining a Right -of -Way Use Permit as otherwise required
under this Agreement. However, this shall not relieve the
Permittee from the requirement of notifyingg the City of the
emergency work and obtaining any Permita necessary for
this purpose after the emergency work. The Permittee shall
notify the City by telephone immediately upon learning of
the emergency and shall apply for all required Permits not
later than the second succeeding day during which the
Edmonds City Hall is open for business.
Section 12, DAuge[Qus Dndlt)gns.- Aulbsd(y tgr_City to
AbAt% Whenever construction, Installation, or excavation of
the communication Facilities authorized by this Agreement
has caused or contributed to a condition that appears to
substantially impair the lateral support of the adjoining pub-
[to 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 compli-
ance within a prescribed time.
In the event that the Permittee falls or refuses to prompt-
ly take the actions directed by. the City, or fails to fully com-
pI , 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 pro-
tect the public, the adjacent streets utilities, Public Ways, to
maintain the lateral support thereof, or sctions regarded as
necessary safety precautions; and the Permittee shall be
]table to the City for the reasonable costs thereof.
Sflclloall mrmpfyfl- Cgafs, The Permldeo shall be
subject to all and Right•of•Way Uee Permit fees associated
with activities undertaken through the authority granted In
this Agreement or under the laws of the City. Where the City
Incurs costs and expenses for review, Inspection, or super-
vision of activities undertaken through the authority granted
In this Agreement, or any ordinances relatingg to any subject
not addressed in this Agreement, the Permittee shall reim-
burse 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 Citv lot anv and all reasnnahla cnata the f.1ty
,p w an rmu meu tint,
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.. All billings will be Itemized as to speclllcally
denllfv 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 Permittee with
the City's Itemization of costs at the conclusion of each proj-
ect lot information purposes.
Section 14, Annual C Sr�SsLtlgd- 151r__l1Se_QL-
QL I�e"adefJtlls MastsUlaB A�tesment:
A. For the purposes of th s section, "New Suppv,
Structure(s)" means a monopole, lattice tower, or similar
structure erected soiely for the purpose of installation of
wireless antennas In the Rigght -of -Way where previously
no similar structure had axis ad,
S. For the Purposes of this section, 'Existing Support
Struclure(s) means existing utility poles, light poles or
other similar approved structures that exist in the Right -
of -Way that can be used to support wireless antennas.
C. For the purposes of this section, "Replacement
Structure(s)" means a structure that is similar to an
Existing Support Structure, but either tailor and/or
stronger than a Existing Support Structure, and which
replaces an Existing Support Structure for purposes of
placement of wireless antennas.
D. The comppeensation provided for In Subsection "F,"
below, shall be adjusts each year of the first
ten -year term, by an increase of five percent (5'0) . The
parties shall most in the tenth (10th) year to revisit the
provisions of this section and Section 17, Insurance, to
establish appropriate and reasonable levels of compen.
soften, annual adjustments thereto, and insurance, con-
sistent with that charged by comparable local jurisdic-
tions. Neither party shall unreasonably withhold its
acceptance and approval of a reasonable adjustment to
the level of compensation so proposed by the other parry
under this section, Permittee shall pay prorated compan-
sallon commensurate with the cherges of comparable
production for any given Facility in the Right-of -Way in
say given year prior to beginning Its installation activities
within the applicable Right -of -Way; thereafter, as to each
Facility existing within the Right -ol -Wag Permittee shall
pay annual compensation prior to the 15th of January of
each year of this Agreement.
E. In the event the Permittee'a Facilities 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 Facilities are out of
service shall be provided on the subsequent year's com -
pensation.
F. In consideration for the use of the Right -of -Way,
Permittee shall commit to providlng an annual payment
for each approved Facility ratio ad on the attached
Exhibit " A. The amount of the annual payment for the
first ten -year term shall be as follows:
1. Antennas placed on a New Support Structure
equipment cabinets are In the Right -ol -Way, annual pay.
ment Is Five Thousand Dollars ($5,000).
2. Antennas placed on an Existing Support
Structure or Replacement Structure , with equipment cabi-
net or other associated equipment located within the public
night-of -Way, annual payment is Three Thousand Dollars
($3,000).
3. Antennas placed on an Existing Support
Structure or Replacement Structure , where no equipment
cabinet or other associated equipment Is located within the
public Right -of -Way, annual compensation Is Two rhousand
Dollars ($2,000).
e ect ag consideration
the right 15, privileges ranted hereunder,, the Permlitee
a
agrees e timea?mnt time Of Five Hundred Dollars ($500.00) to
defray the City's legal and admintstrativIA costs and experts.
as associated with no otlating and approving this Master
Use Agreement, provided that such expenses shall not be
Included In the reimbursement provisions set forth in
Section 14 of this Agreement.
a�ticO.jQ, ((nn mmncation end Waiver,
A. Permittee hiereby releases, covenants not to bring suit
and agrees to Indemnity, defend and hold harmless the
City, its officers, employees, agents and representatives
from any and all claims, costs, Judgments, awards or Its -
blllty to any person arising from Injury, sickness, or death
of any person or damage to properly:
1. For which the negligent acts or omissions of
Permittee, its agents, servants, officers or employees
In performing the activities authorized by this Master
Use Agreement 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 that
are the subject of this Agreement;
4. Based on the City's Inspection or lack of inspection of
work performed by Permittee, its agents and ser-
vants, officers or employees in connection with work
authorized on the Public Ways or property over which
the City has control pursuant to this Agreement or
pursuant to any other site - specific Permit or other
tippproval Issued In connection with this Agreement;
5. Arising as a result of the negligent acts or omissions
Of Permltee, Its agents, servants, officers or employ -
sea in barricading, instituting trench safety sys eme
or providing other adequate warnings of any excava•
lion, construction, or work upon the Public Ways, In
any public way, or other public place in performance
of work or services permitted under this Agreement.
B. The provisions of Subsection 'A" of this Section shall
apply to claims by Permlase'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 neggoti-
ated by the parties hereto, and Permittee admowledgea
that the City would not enter Into this Agreement without
Permittee's waiver thereof.
C. Inspectlon or acceptance by the City of any work per•
formed by the Permittee at the time of completion of con-
struction shall not bo ground: for avoidance of any of
these covenants of indemnlficatlon. Provided That
Permittee has been given prompt written notice by the
City of any such claim, sold 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 ties
the right to approve any settlement or other compromiso
of any such claim, provided that Permittee shall not be
liable for such settlement or other compromise unless it
ties 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 subse-
quently 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 attornAy's fees , and the rea-
sonable costs and fees to City associated with recover.
in under this Subsection.
E. Ths obligations of Permittee under the Indemnification
;provisions of this Section shall apply regardless of
whether liability for damages arising out of bodlly Injury to
persons or damage: to property were causal or con.
tributed to by the Clty, its officers, agents, employees or
contractors except to the extent that such claims, actions,
damages, costs, exppenses, and attorneys fees were
caused by the rte t once or any willful or malicious
action on the part o1 tho City, its officers, agents, employ.
ees or contractors. In the event that a court of com event
furisdiction determines that this Agreement is sub .j to
e provisions RCW 4.24.115, the parties agree that the
indemntly provisions hereunder shall be deemed amend-
ed to conform to said statute and liability shall be aliocat.
ed as provided therein.
F Notwithstanding any other provisions of this Section,
Permittea assumes the risk of damage to its
des or conlraclore. 1n the event that a court of comp lan
jurisdiction determines that this Agreement is subject to
the provisions RCW 4.24.115, the parties agree that the i
Indemnity provisions hereunder shell be deemed amend-
ed to conform to sold statute and liability shall be allocate
ed as provided therein.
F Notwithstandifig any other pprovisions of this Section,
Permitted assumes the risk of damage to its`
Communication Facilities located in the Public Ways and
upon Cit�y=owned ppropetty from such activities conducted
I by the Clly, Its oHlcers, agents, employees and contrac-
tors, 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.-i
Agents, employees or contractors. Permitted releases:'
and waives any and all such claims against the City, Its
officers, agents omployees or contractors. Pormittee fur- ,
ther agrees to Indemnify, hold harmless and defend the ?
' Cityy aggainst any claims for damages, including, but not
limltodto, business Interruption damages and lost profits,
brought by or under users of Permittoo's Facilities as the
result of any Interruption of soNice due to damage or
destruction of Parmittee's Facilities caused by or arising
t out of activities conducted by the City, Its officers, agents,
employees or contractors, except to ilia extent any such ;
j damage or destruction is caused by or arises from the I
negligence or ony willful ocmaliclous actions on the part
of the City, Its officers, agents, employees Or contractors.
G. City shell Indemnify, save harmless and dofehd AT &T' i
Wireless from and against any and all Injury, less, dam•
age or liability (or any claims in respect of the foregoing), t
and costs or oxpenses (Including reasonable attorneys
fees and court costs) arising directly out of the sole neg-
Ilgence or tortious acts of the city or its employees or i
agents. 11
jnstu Tho Permitted shell procuro and 1
1 mo ritef -in s ranco agalnet Claims for Injuries to parsons or, ,
damages to property which may arise from or in connection i
with the exercise of the rights, privileges and authority t
granted hereunder to the Permittee, its agents, represents -
lIves or employees. The Permittee shall provide to the City
an Insurance certificate nothing the City As an additional
Insured for its inspection prior to the commencement of any
work or installation of any Facilities pursuant to this
Agreement. Suoh insurance certificate shall evidence:
A, Comprehensive general liability Insurance written on
an occurrence basis, Including contractual 11a6ifily cover- I
age, with limits not less than:
(1) $3,000,000.00 for bodily injury or death to each
parson; and
(2) $3,000,000.00 for pro arty damage resulting
from any one acciden .
B.Automoblle liability for owned, non•ownod and hired
vehicles with a limit of $3,000 000.00 for each person and
$3,000,000.00 for each accident. t
C. Worker's compensation within statutory limits ;
and employor's liability Insurance with limits of not less
than $1,000,000.00.
i The liability Insurance policies required by this Section
Shelf be maintained by the Permittee throuphout the term of
this Agreement, and such other period of time during which
the Parmittee Is operating without a or Rlght•of• ay Use
Permit hereunder or d$ enpaged.in the removal of any of Its
Communication Facilities n the right of way. Payment of
deductibles and self - Insured rxtensons shall be the sole
responsibility of the Permitlbe. The Insuranco certificate
required by this Section shall contain a clause stating that
the coverage shall applyy separately to each Insured a alnst
whom a claim la metld or suit is brought, except with
respect to the limits of the insurer's liability. The Permitted's
Insurance shall be primary Insurance with respect to the
�Cft .. Any Insurance maintained by the City, its ooiCdrs, ofil• .
clefs, employees, consultants, agents, and volunteers shall
be in excess of the Pertnittee's Ineur snoe and shell not con-
tribute with it.
1 In addition to the coverage requirements sat 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 thirty (30) days after receippt `
by the City of written notice of the same via U.S. mall. i
Within fifteen (15) days after receipt b the City of said
notice, and in no event later than five (5f days prior to said
cancellation or non - renewal, Ilia Permihee shall obtain and ,
furnish to the City replacement Insurance cartilicatd(s)
meetiSectuire�me of this Section
v
i Pde's ConlunlceU� Upon the exp r on, .
term natlon, or revocation of the rights granted under this
Agreement, the Permittee shall remove all of Its '
Communications Facilities from the Public Ways of the Cityy
wlthln nrncly t90) days of receiving notice from A
Community Services Director, Provided, however, that the
1 City may permlt the Permlttee'S improvements to be aban-
donod and replaced in 'such a manner as the parties shelf
agree; subsequent always to the City's standard construe-
i tlon requirements for Right -oi -Way use. Upon permanent
i abandonment, and Pdrm tt9e's agreemem to transfer -own=
` ership o1 any Communication Facilities to the Clry the .
i Permitted shall submiLto the City a proposal and (ristru-
! meets for transferring ownership fo the City Any such '
FaclBlias abandoned in place without City's Consent and not ,
removed wUhln ninetryy (90) days of receipt.of notice there•
of shall automatloalfy become the props of the City,
unless Pormltloe is prevented from removin is Facilities by
causes be nd its reasonable C , but not lim-
ited to,.acia of God, war, or governmental restrictions, In
Such case, Permitted's time for performance of Its oblrga-
dons under this Section will be extended by a rensons le
Period of time, not to exceed an additional thirt y (30) days
n any event, without City's consent thereto. Provided, how-
ever, 1 that nothing contained within this Section Shall prevent
the City from cc m ailing the Permittee to remove any such
Facilities throu h judicial action when the Cfly has not con,
sanded to the f�ormittea's abandonment of said Facilities In
place.
S�t14tL1$. 9 Bar ore undertaking any
of the work, Instal ation, mprovements, cc structlon, repair '
relocation or maintenance authorized by This Agreement
the Permittee shall furnish a street repair or sidewelk bone)
written byy a corporate surety acceptable to.the CI actual to .
at least 12546 01 the estimated cost of raslorin� t e Public
Ways of the City to the . pro - construction condit on required
by Section i t of this , Agreement. Said bond shall be
required to remain full force until sixtyy (60) days after com -
pletlon of the construction of Permftied's Communication
Facilities and other Improvements from the Public Ways of
i the City, and said bond, or separate bond acceptable to the
City, shall warrant all such restoration work for a period of
two (2) years. In the event that a bond Issued to meet the
rdgJ re ants of this Section Is canceled by the surety, after
( proper notice and pursuant to the terms, of said bond,
ermlttoo shall, prior to expiration of said bond, be reopen-
at Is for obtaining a replacement bond which complies with
the terms of this Section.
S@gtion 20 Modifiollm, The City and the Pormittee
hereby reserve t to right to alter, amend or modify the tones
j and conditions of ihls Agreement upon the wfl ten agree= .
ment of both parties to such alteration, amendment or rood,
IUcatlon. Said modifications shell be approved by,the City by
ordinance and accepted by the Permflie , consistent with
Section 32 hereof.
g Forte11uL29nq igevocatbn ff the Pdrmittoo
f wl IfuiilvOle
tes c falls to Comply with any of the material
i provis ohs of this Agreement, or through willful misconduct
or gross negligence falls to heed or comply with any notice
t rven the Permittee byy the City under the provisions of this
Ag�reement, then the Permltlee shall, al tha election of the
City Council, fortoil ell rig9hts conferred hereunder and this
A reement may be rovokad, terminated or annulled by the
t Cliy Council after a.hea ring hold upon reasonable written
notice to Permitted. The City Council may decide, after con-
sideration of the reasons for the Permitted's failure to com-
1 ply with this Agreoment, to allow the Parmittee additional
t time to cure before such termination or revocation. the City
e mayy elect, In lieu of the above; and without prejudfco to any
of fts other legal rights and remedies, to obtain an order
from the Superior court having jurisdiction compelling the
Permitted to comply with the provisions of this AAgreement l
and to recover its reasonable, documented damages an
costs Incurred by ilia City as a direct result of th
- Permitted's failure to comply with the terms of IN
Agreement.
herein ahel be deemed to Irect or ras "filet the Airy s abllil
- to,adopt and enforce all necessary artd appropriate-ord
Mo elect, In lieu of the above, and'wilhbut Oeojudlco fo any '
of ifs other legal rights and remedies, to obtain an order
from ilia superlor court having jurisdiction co oiling the
Permittee to comply with the provisions of this Agreement
and to recover its reasonablo, documented damages and
costs incurred by the City ad a direct result of the
Permittee's. failure to comply with the terms of this
Agreement.
�2Z &ijy�tLflpaO�LLflI (Igrt& Nothing
hard n s all be dOemeU to react or ras ct the Cily'a abilltyy
!' to -adopt and enforce all necessary and appropriate ordr;
nancas regulating the perlormanco of the conditions of this
Agreement, Including any valid ordinance made In the exer-
cise Mile police powers In the interest of public safety and
t for the welfare of the public. The City shall have the author,,
ity at all times to control by appropriate regulations the Iota -
tiona, elevation, manner or construction' and maintenance
of any Facilities by the Pormilteo, and the Parmittee shell ,
promptly conform with all such regulations, unless cc II
would cause the Permitted to vlolate'other require-
mants of the law.
Section 21 y�i All of the provisions, conditions,
J and requirementso fins Agreement shall be in addition to
any and all other obligations and liabilities the Permilte
t may have to the City aE common law, by statute, or by con-
; tract. The revisions, conditions, and requirements, of
Sections 7,. m][110f tIQIl„Syr p; 9, V .
c k: 10, .Elfl�t4t11111_9.11 12;
4 r [cr y t2� 16i
S17; jna ran .d: and 18,
7 L9L31J9— _PA[Illltf9� 4
I s all survive the expiration or ter-
t ri nal On of this Master Use Agreement, and any renewals
or extensions thereof, slid remain effective until such time
as the Pormittee removes Its Communication Facilities from
the Public Ways, transfers ownership of sold Facilities to d
third- arty, or abandons said Facilities In place, all as.pro-
videdplleraln. All of the provisions, conditions, regular ono
and reVremdnts contained in this Agreement shall further I
be binding upon the heirs, successors, executors adminls-
trators, leggal representatives and asst ns of the f ermined;
And all privileges, as well as all obligations and liabilities of
the Parmittee shall inure to Its heirs, successors, and .
assigns equallyy ss 1f they were specifically mentioned wher{ ,
ever the Permittee is named herein. i
S ;?�rtiblL } In any section, Sentence, clause
or phrase of tit s�nt should be hold to be Invalid or
i unconstitutional by a court of competent ffurisdiction, such
t Invalidity or unconstitutionality shell not of act the validity or
constitutionality of any Other section, sentence, clause, or
phrase of this Agpree�mejnt.
S=j1gp„25' As,ic an t This Agreement may not be .
assigned or transferred without the written approval of the
y City, such approval not to be unressonablyy withheld or
a da nyed, except that the Parmittee •may froely assign this
r -Agreement, in whole or part, to any parent, subsidiary, or
l alililated 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 j
consent shell not be required unless and until the secured
party elects to realize uppon,the collateral. The Permittee
shall provide prompt, writton notice to the City of any such
1 assignment.
i Section 26, Uotice, Any notice or Information required or
1 otherwise provided as between the parties under this ,
Agreement shell be sent to the following addresses unless
otherwise specified by Use parties:
. City: Permitted:
City of Edmonds AT &T Wireless Services
Director of Attention:
Community Services Property Management' -
121 5th Avenue N, ' 2729 Prospect park Drive, '
Edmonds, WA 98020 Suite 100 - '
425 771.0220 Rancho Cordova, CA 95670
i rFa��x::� _42��5p-l7oo7ss1.t-o 2.21 .
AT&T
PVlroleas Services t
Attention: Legal Department
2729 Prospect Park Drive, Suite 200 r
} Rancho Cordova, CA 95670 x
i Notice shelf be doomed provided upon receipt in the case
Of personal delivery three'(3) days after deposit In the
United States Mail In the case of regular mail, or the next
doiIn the case of overnight dsllvery. r.
tl 7 Ettllro AgL9Si0)A11t. his Agreement constl-
lutes t e entire understan n and agreement between the
parties hereto as to the subject matter herein and no other
agreements or understanding$, written or otherwise, shall
be binding upon the parties upon approval and acceptance
of this Agreement. ' y
I Li3(w It any suit or other Action Is
r
in tutSl� ed fnconnootion w thh any controversy arising under
this Agreement, the prevailing party, shall be entitled to
r recover it of Its costs and expenses including such sum as
the court may judge, reasonable for attorneys fees, includ-
In fg eas up o eel of any Judgment or rulingg.
Section. pNpon•walvgr, Failure of the City to declare
any such or r default immediately upon the occur-
rence thereof, or delay In taking any action in eonneetion
therewith shall not waive such breach or default, but the
City shall have the right to declare any such breach or
f 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 tlyotperualtn This Agreement shall
be gpoverned by endreanstrusd In accordance with the laws
i of tfreState of Washington. The venue and jurisdiction over
1111 $ny dispute relsted to this Agreement shall be with the
I Rnnhnminh Couniv SuDedor Court.
:of the Permitted to so accept this Agreement within Sala
,period of time shall be doomed a re Action thereof, and the
rights and privila, es herein grant�dd shell, after the expire -
tion of the sixtyy. (6 ) day period, absolutely cease and deter-
mine, unless the time period Is extenrlod by ordinance duly
rpossed for that purpose.
Sactlon 32 Effective Date, This ordinance, 'being an
+exorcise of a Power specifically delegated to the Crty leg-
Isiative bodyy not Subject to referendum, and shall take
effect five (6i days after the passage and publication of an
'approved summary thereof consisting of the title.
MAY
ATTEST/AUTHENTICATEUOR GARY HAAKENSON
CITY CLERK SANDRA S. CHASE
Published: March 2, 2003:
t
•j
11