Ordinance 4224ORDINANCE NO. 4224
AN ORDINANCE OF THE CITY OF EDMONDS, WASHINGTON, GRANTING TO
NEW CINGULAR WIRELESS PCS, LLC, A DELAWARE LIMITED LIABILITY COMPANY,
A NON-EXCLUSIVE MASTER PERMIT AGREEMENT TO INSTALL, OPERATE, AND
MAINTAIN SMALL WIRELESS TELECOMMUNICATIONS FACILITIES WITHIN THE
PUBLIC RIGHT-OF-WAY OF THE CITY OF EDMONDS, WASHINGTON, PRESCRIBING
CERTAIN RIGHTS, DUTIES, TERMS, AND CONDITIONS WITH RESPECT THERETO,
ESTABLISHING AN EFFECTIVE DATE.
WHEREAS, New Cingular Wireless PCS, LLC, is a Delaware limited liability company
whose sole member is AT&T Mobility II LLC and whose sole manager is AT&T Mobility
Corporation, with its principal offices at: 1025 Lenox Park Blvd. NE, Yd Floor, Atlanta, GA 30319;
and
WHEREAS, New Cingular Wireless PCS, LLC, has an existing Master Use Agreement
with the City of Edmonds effective February 25, 2005 and with a maximum term of twenty years;
and
WHEREAS, on April 2, 2019, the City Council passed ordinance 4147, amending Chapter
20.50 of the Edmonds Community Development Code, entitled "Wireless Communications
Facilities," updating standards and process requirements of wireless communications facilities,
including new standards relating to location preference hierarchy and design standards for small
wireless facilities in the right-of-way; and
WHEREAS, since Chapter 20.50 was amended New Cingular Wireless PCS, LLC, has
requested that the City grant it the right to enter, use, and occupy the city right-of-way in order to
install, operate, and maintain its planned small wireless facilities deployments: a wireless network
consisting of a collection of interrelated small wireless facilities designed to deliver
telecommunications services, and
WHEREAS, due to the Chapter 20.50 amendments, the City requires a new Master Permit
relating to New Cingular's new, and any existing, small wireless facilities; however, the existing
Master Use Agreement shall continue to govern and control with respect to New Cingular Wireless
PCS, LLC's macro facilities and associated equipment installed in the City's right-of-way; and
WHEREAS, the City Council has the authority under RCW 35A.47.040, RCW 35.99.020
and Chapter 20.50 of the Edmonds Community Development Code to grant, issue, or deny Master
Permit Agreements for the use of city right-of-way; 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 Permit 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. "Facility" or "Facilities" means Permittee's owned, operated, or controlled
Small Wireless Facilities as defined in the Edmonds Community and Development Code
(ECDC) 20.50, incorporated herewith. Facilities further includes any Permittee owned or
controlled Small Wireless Facility support structures, e.g. poles, and any conduit, wires,
coaxial cables, fiber, and other equipment necessary to operate the Small Wireless Facility
that is within ten (10) feet of any support structure --whether Permittee owned or not --to
which the Small Wireless Facility is attached. Facilities do not include any equipment that
is not within ten (10) feet of any support structure to which the Small Wireless Facility is
attached (excluding any strand -mounted unit). Facilities do not include anything used to
provide wireline services, fronthaul or backhaul services. Facilities do not include anything
that is not within the Right -of -Way, or that is covered under a separate master permit or
franchise.
d. "FCC" means the Federal Communications Commission, or any successor
governmental entity thereto.
e. "Master Permit Agreement" or "Master Permit" shall mean this agreement,
or renewal thereof, granted by the City pursuant to ECDC 20.50.020(C), through this
Ordinance, or a subsequently adopted Ordinance.
f. "Permittee" means New Cingular Wireless PCS, LLC, a Delaware limited
liability company, or the lawful successor, transferee, or assignee thereof.
g. "Person" is to be interpreted in its broadest sense and includes individuals,
corporations, companies, associations, joint stock companies or associations, firms,
partnerships, limited liability companies, and any other entity or organization.
h. "Public Ways" or "Rights -of -Way" means land acquired or dedicated for
public roads and streets in the Service Area, but does not include:
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(a) State highways;
(b) Land dedicated for roads, streets, and highways not opened and not
improved for motor vehicle use by the public;
(c) Structures, including poles and conduits, located within the right-of-
way;
(d) Federally granted trust lands or forest board trust lands;
(e) Lands owned or managed by the state parks and recreation
commission; or
(f) Federally granted railroad rights -of -way acquired under 43 U.S.C. Sec.
912 and related provisions of federal law that are not open for motor
vehicle use;
(g) buildings or other City -owned physical facilities; and
(h) parks, poles, conduits, fixtures, real property or property rights owned
by the City, or similar facilities or property owned by or leased to the City,
i. "Reasonable" or "reasonably" means an action or decision for which a
reason or basis can be stated, such reason or basis arising from the facts and circumstances
of the particular situation presented. Reasonable or reasonably is contrasted with arbitrary,
i.e., unreasoning action, without consideration and in disregard of facts and circumstances.
Where there is room for two opinions, a decision is reasonable even though one may
believe an erroneous conclusion has been reached.
j. "Service Area" means the present municipal boundaries of the City, and
shall include any additions thereto by annexation or other legal means.
k. "Telecommunications Service" means the transmission of information by
wire, radio, optical cable, electromagnetic, or other similar means for hire, sale, or resale
to the general public. "Information" means knowledge or intelligence represented by any
form of writing, signs, signals, pictures, sounds, or any other symbols.
Telecommunications Service shall not include the over -the -air transmission of broadcast
television or broadcast radio signals, nor the provision of Cable Services as defined in 47
U.S.C. Section 522(6), for which a separate permit and franchise would be required.
Section 2. Terms, Conditions, and Provisions of ECDC Chapters 20.50 and 18.60
Incorporated by Reference. The terms, conditions, and provisions of Chapters 20.50, and 18.60 of
the Edmonds Community and Development Code (ECDC), existing at the time of execution of
this Master Permit or as may thereafter be amended, are incorporated herein by reference. All
rights granted hereunder are subject to the terms, conditions, and requirements of Chapters 20.50
and 18.60 ECDC.
Section 3. Authority Granted. The City hereby grants to the Permittee, its heirs, successors,
legal representatives, and assigns, subject to the requirements of Chapters 20.50 and 18.60 ECDC
and the terms and conditions hereinafter set forth, the right, privilege, and authority to construct,
operate, maintain, and replace Permittee's Facilities in the Public Ways for the purpose of
providing Telecommunications Service. The City may require a license agreement prior to
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placement or replacement of any support structures in the Public Ways or any attachment to City
owned poles. No substantive expansions, additions to or modifications or relocation of any of the
Facilities shall be permitted without first having received prior authorization from the City.
Section 4. Authority Limited to Occupation of Public Ways. The authority granted herein
is a limited authorization to occupy and use the Public Ways of the City. No authority is granted
to occupy or use any City owned or leased properties. 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. Wireless Communication Facility Permits and Right -of -Way Construction
Permits Required.
A. Prior to site -specific location and installation of any portion of its Facilities within
a Public Way, the Permittee shall apply for and obtain both a wireless communication facility
permit pursuant to ECDC 20.50. and a Right -of -Way construction permit pursuant to ECDC
20.50.020(D) and ECDC Chapter 18.60. The Public Works Director or designee shall review
wireless communication facility permit applications according to the procedure set forth in ECDC
20.50. In addition to any criteria set forth in ECDC Chapterl8.60, the Public Works Director or
designee shall apply the following criteria in the issuance or denial of a Right -of -Way construction
permit application:
1. Whether the Permittee has received all requisite licenses, certificates, and
authorizations from applicable federal, state, and local agencies with
jurisdiction over the activities proposed by the Permittee;
2. Whether there is sufficient capacity in the Public Ways to accommodate the
Permittee's proposed Facilities;
3. The capacity of the Public Ways to accommodate additional utility, cable,
and facilities if the construction permit is granted;
4. The damage or disruption, if any, of public or private facilities, utilities,
improvements, service, travel or landscaping if the construction permit is
granted;
5. The public interest in minimizing the cost and disruption of construction
within the Public Ways.; and
6. If any criteria lead the Public Works Director to deny Permittee a
construction permit, then City will consider any alternate routes and/or
locations that may be proposed by Permittee.
B. Unless otherwise provided in said Right -of -Way construction permit and except
for emergency repairs, the Permittee shall give the City at least forty-eight (48) hours' notice of
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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 Facilities and pay all duly established
Right -of -Way construction permit and inspection fees associated with the processing of said
permit. Except as otherwise provided in this Master Permit Agreement, no work shall commence
within any Public Way without said Right -of -Way construction permit.
C. The City may adopt procedures combining the application and resulting permit for
wireless communication facility and Right -of -Way construction permits.
Section 6. Term of Master Permit; Standards for Renewal.
A. Term. The term of this Master Permit shall be for a period of five (5) years from
the date of acceptance as set forth in Section 39 (Acceptance), unless sooner terminated as provided
herein.
B. Renewal of Master Permit --Procedure. If Permittee desires to renew its Master
Permit for an additional term it shall, not less than 180 days before expiration of the current
Master Permit, file an application with the City for renewal which shall include the following:
1. The information required pursuant to ECDC 20.50.020(C)
2. Any proposed changes to the current Master Permit submitted electronically in
Word format, proposed changes in track changes. Either party may propose
changes;
3. Any information required pursuant to the current Master Permit;
4. Such other information as the Public Works Director, in his/her discretion, shall
deem appropriate; and
5. An application fee for recovery of City staff costs which may be set by the City
Council by resolution, and an additional amount for recovery of costs for
attorneys, consultants, and City Attorney's Office review.
C. Renewal of Master Permit -Standards. The city council shall decide whether to renew,
renew with conditions, require a new master permit, or deny the application, all in accordance
with the terms and procedures of ECDC 20.50.020(C).
D. Renewal of Master Permit -Obligation to Cure. No Master Permit shall be renewed
until any ongoing violations or defaults in the Permittee's performance under the Master Permit,
the requirements of Chapter 20.50 ECDC, the Edmonds Code, as applicable, and any other
lawful applicable regulations with respect to use and management of the Public Ways, other
ways, and City property, have been cured, or a plan detailing the corrective action to be taken by
the Permittee has been approved by the City.
Section 7. Non -Exclusive Grant. This Master Permit shall not in any manner prevent the
City from entering into other similar agreements or granting other or further Master Permit
Agreements, franchises, Right -of -Way permits in, under, on, across, over, through, along or below
any of said Public Ways of the City, nor from exercising such other powers and authorities granted
to the City by law. Permittee shall construct, install, maintain, and continuously operate its
Facilities to prevent interference with the other facilities in the Public Ways and the operation
thereof. Further, this Master Permit shall in no way prevent or prohibit the City from using any of
its Public Ways as authorized by law or not prohibited by law 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, all in compliance with this Master Permit and applicable law.
Section 8. Relocation of Facilities.
A. Where relocation of Facilities is required by the City, City and Permittee shall comply
with RCW § 35.99.060(2). If RCW 35.99.060(2) is amended after the date of this Master Permit,
then the parties' obligations are likewise amended.
B. Permittee acknowledges that its Facilities may need to be relocated during the term of
this Master Permit Agreement. 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 Facilities when so required by the Public Works 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, highway 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 Public Works Director, any Facility required to be temporarily
disconnected or removed.
C. Upon the reasonable request of, and with at least thirty (30) days' notice from, the Public
Works 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 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 19 (Inventory) of this Master Permit are reasonably
determined by the Public Works 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 Public Works Director upon review of the location and construction of the
Permittee's Facilities.
D. If the Public Works Director determines that the project necessitates the relocation of
the Permittee's then existing Facilities, the City shall:
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1. Within a reasonable time, which shall be no less than sixty (60) days, prior to
the commencement of such improvement project, provide the Permittee with
written notice requiring such relocation. 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. City will strive to afford a location from which Permittee can
provide substantially similar service to that provided from the original location
whenever practicable.
3. The Permittee shall complete relocation of its Facilities at no charge or
expense to the City so as to accommodate the improvement project at least 10 days
prior to commencement of the project. In the event of an emergency as described
herein, the Permittee shall relocate is Facilities within the time period specified by
the Public Works Director.
E. 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 are 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.
F. 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.
G. Permittee acknowledges and agrees that the placement of its Facilities on third party -
owned poles does not convey an ownership interest in such poles. Permittee acknowledges and
agrees that to the extent Permittee's Facilities are on poles owned by third parties, the City shall
not be responsible for any costs associated with requests arising out of a relocation. A relocation
includes movement of Facilities arising out of pole removal, replacement or upgrade. Permittee is
not permitted to purchase any utility owned pole in order to avoid relocation or costs associated
with relocation unless specifically authorized by the City.
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H. 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 reasonable control of the Permittee.
I. The cost and expenses associated with relocation of the Permittee's Facilities shall be the
responsibility of the Permittee unless the Permittee had paid for the relocation cost of the same
Facilities at the request of the City within the past five years. Notwithstanding any other provision
of this Ordinance, in the event of a conflict between this Ordinance and the provisions of applicable
state law, the provisions of the applicable state law shall control.
J. In the event of an unforeseen emergency that creates a threat to the public safety, health,
or welfare, the City may require the Permittee to relocate its Facilities at its own expense, any other
portion of this Section notwithstanding.
Section 9. Undergrounding of Facilities.
The parties agree that this Master Permit does not limit the City's authority under federal
law, state law, or local ordinance to require the undergrounding of utilities, including Permittee's
Facilities.
Permittee's Facilities shall be undergrounded; Provided that undergrounding requirements
shall not apply to those elements of Permittee's Facilities that are required to remain above ground
in order to be functional. The City shall not pay any of the cost of undergrounding. Upon an
undergrounding project, Small Wireless Facilities and associated Facilities may be required to
relocate to an alternative approved structure or pole consistent with ECDC 20.50.130 and pursuant
to the relocation requirements of this Master Permit (for example, if all utility poles in the area are
removed as part of the undergrounding project.)
Section 10. Work in Public Was.
A. During any period of relocation, construction, or maintenance, all surface
structures, if any, shall be erected, used, and maintained in such places and positions within said
Public Ways and other public properties so as to interfere as little as possible with the free passage
of vehicular and pedestrian traffic and the free use of adjoining property. The Permittee shall at
all times comply with all applicable safety and traffic control regulations during such period of
construction as required by the specifications and codes, and all other applicable local municipal,
state, and federal codes, rules and regulations.
B. During the progress of the work, the Permittee shall not unnecessarily obstruct the
passage or proper use of the Public Ways, and all work by the Permittee in any area covered by
this Master Permit and as described in this Section shall be performed in accordance with City of
Edmonds Public Works Construction Standards and warranted for a period of two (2) years.
C. The Permittee shall cooperate with the City and all other persons with authority
from the City to occupy and use the Public Ways of the City in coordination of construction
activities and joint trenching projects. By February l st of each calendar year, the Pennittee shall
provide the City with a schedule of its proposed construction activities for that calendar year in,
around, or that may affect the Public Ways of the City. The Permittee shall also meet with the
City and other grantees, franchisees, permittees, and users of the Public Ways of the City annually,
or as determined by the City, to schedule and coordinate construction activities.
D. Consistent with RCW Chapter 35.99, the Permittee may, on an annual basis, file
notice with the City Clerk and the City Engineer of its desire to receive notices related to public
improvement projects within the Public Ways of the City. In the event that the Permittee is mailed
such a notice and fails to coordinate installation or construction of its Facilities with the public
improvement project, the City Engineer may deny the Permittee's construction permit application
for those portions of any of the Permittee's construction projects which seek to disrupt the surface
of any said street for a period of up to five years, as reasonably determined by the City Engineer
for the purpose of protecting the City's investment in said public improvement projects. In the
alternative, the City Engineer may require the Permittee to fully restore the surface and sub -surface
areas of such street to the condition that it was in immediately after completion of the public
improvement project.
Section 11. Restoration after Construction. The Permittee shall, after installation,
construction, relocation, maintenance, removal, or repair of its Facilities within the Public Ways,
restore the surface of said Public Ways and any other City -owned property, including support
structures, that may be disturbed by the work, to at least the same condition the Public Way or
property was in immediately prior to any such installation, construction, relocation, maintenance,
removal, or repair. 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
Municipal Code and Public Works Construction standards. All survey monuments which are to
be disturbed or displaced by such work shall be referenced and restored, as per WAC 332-120, as
the same now exists or may hereafter be amended, and all pertinent federal, state and local
standards and specifications. The Permittee agrees to promptly complete all restoration work and
to promptly repair any damage caused by such work to the Public Ways or other affected area at
its sole cost and expense according to the time and terms specified in the Right -of -Way
Construction Permit issued by the City all in accordance with the applicable provisions of the
Edmonds Municipal 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 two (2) years.
Section 12. Emergency Work — Permit Waiver. In the event of any emergency in which
any of the Permittee's Facilities located in, above, or under any Public Way break, are damaged,
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
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the protection of property, life, health, or safety of individuals without first applying for and
obtaining a Right -of -Way construction permit as required by this Master Permit . 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 as promptly as reasonably possible 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 13. Dangerous Conditions. Authority for City to Abate. In the event of any
emergency in which any of Permittee's Facilities breaks, falls, becomes damaged, or if Permittee's
Facilities is otherwise in such a condition as to immediately endanger the property, life, health or
safety of any person, entity or the City, or whenever construction, installation, or excavation of the
Facilities authorized by this Master Permit has caused or contributed to a condition that appears to
substantially impair the lateral support of the adjoining Public Way, street, or public place, or
endangers the public, street utilities, or City -owned property, the City Engineer may 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 reasonably prescribed time. What will be considered reasonable time will be
determined by the City based on the nature of the dangerous condition.
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 after receipt of an itemized bill.
Section 14. Recovery of Costs. Permittee shall be subject to all permit fees associated
with activities undertaken through the authority granted in this Master Permit or under the laws of
the City. Where the City incurs costs and expenses for which a fee is not established, Penmittee
shall reimburse the City the actual administrative expenses incurred by the City that are directly
related to receiving and approving a permit, license, and this Master Permit, to inspecting plans
and construction, to supervision of activities undertaken through the authority granted in this
Master Permit or any ordinances relating to the subject for which a permit fee is not established,
or to the preparation of a detailed statement pursuant to chapter 43.21C RCW. Permittee shall
further reimburse the City for Permittee's proportionate share of all actual, identified expenses
incurred by the City in planning, constructing, installing, repairing or altering any City facility as
a result of the construction or the presence in the Right -of -Way of the Permittee's Facilities. Fees
for which Permittee is responsible under this Section may include reimbursement for time
associated with attorneys, consultants, City Staff, and City Attorney's Office review.
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 Facilities.
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The time of City employees shall be charged at their respective rate of salary, including
overtime if applicable plus benefits and reasonable overhead. Any other costs will be billed
proportionately on an actual cost basis. All billings will be itemized as to specifically identify the
costs and expenses for each project for which the City claims reimbursement. A charge for the
actual costs incurred in preparing the billing may also be included in said billing. The billing may
be on an annual basis or sooner, but the City shall provide Permittee with the City's itemization of
costs at the conclusion of each project for information purposes.
Section 15. Fees for Use of Public Ways.
A. Prohibition of Franchise Fee. Pursuant to RCW 35.21.860, the City is precluded
from imposing a fee on a "telephone business" or a "service provider" for use of the right-of-way,
except for administrative expenses or any applicable tax authorized by law, and other exceptions listed
therein. This Master Permit is premised upon the City and Permittee's understanding that the activities
proposed by the Permittee and authorized by the City constitute those of a "telephone business" or
"service provider." The City hereby reserves its right to impose a fee on Permittee, to the extent
authorized by law, for purposes other than to recover its administrative expenses, if the Permittee's
operations are not those of a "telephone business" or "service provider" or if statutory prohibitions on
the imposition of such fees are removed, whether by legislative or judicial action. The City also
reserves its right to require that the Permittee obtain a separate agreement for its change in use, which
agreement may include provisions intended to regulate the Pennittee's operations, as allowed under
applicable law.
B. Permittee Obligated to Pay Taxes. Nothing in this Ordinance is intended to alter,
amend, or modify the taxes and fees that may lawfully be assessed on Permittee's business
activities under this Ordinance pursuant to applicable law. This Master Permit does not limit the
City's power of taxation. Penmittee agrees that all of its activities in the City of Edmonds authorized
by this Master Permit are specifically taxable as a telephone business under Edmonds Municipal
Code Chapter 3, including EMC 3.20.050, and are taxable at the rate specified therein now in effect
or as amended. Permittee is subject to payment of any applicable local utility tax and any other tax
of whatever kind applicable to Pennittee's operations.
C. Site Specific Charges. The City may impose a charge for use of the Right -of -
Way in the circumstances outlined in RCW 35.21.860(1)(e), and the parties agree the City may
charge an amount consistent with FCC orders. If FCC orders are no longer in effect during the
tern of this Master Permit, then the parties will negotiate an acceptable charge. If the parties cannot
agree then they will utilize the process outlined in RCW 35.21.860(1)(e).
Section 16. Manner of Pavment: Audit. Permittee shall make all required payments
under this Master Permit, including taxes, in the form, intervals, and manner requested by the City
Finance Director, and furnish him/her any information related to his/her revenue collection
functions reasonably requested. The City Finance Director may call for an audit pertaining to
payments under this Master Permit twice per calendar year and not more frequently unless the
Finance Director has a reasonable basis therefore. In case of audit, the City Treasurer may require
Permittee to furnish a verified statement of compliance with Permittee's obligations or in response
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to any questions. Said certificate may be required from an independent, certified public accountant,
at Permittee's expense. Permittee agrees, upon request of the City Treasurer, to provide copies of
all documents filed with any federal, state, or local regulatory agency affecting any of Permittee's
Facilities or related business operations pursuant to this Master Permit.
Permittee agrees that it will manage all of its operations in accordance with a policy of keeping
books and records open and accessible to the City. Without limiting its obligations under this
Master Permit, Permittee agrees that it will collect and make available books and records for
inspection and copying by the City in order to ensure the operations of Permittee are that of a
telephone business or service provider pursuant to RCW 35.21.860. Permittee shall be responsible
for collecting the information and producing it. Books and records shall be produced to the City at
one of Permittee's physical offices in the State of Washington in the greater Seattle area or such
other location as the parties may agree. Permittee shall take all steps required, if any, to ensure
that it is able to provide the City all information which must be provided or may be requested
under this Master Permit, including providing appropriate subscriber privacy notices. Nothing in
this Master Permit shall be read to require Permittee to violate 47 USC Section 551. Permittee
shall be responsible for redacting any date that federal law prevents it from providing to the City.
Permittee shall have the right to have its employee and agents physically present at all times that
the City, its employees or agents are conducting any such audit and representatives of the City
shall comply with Permittee's standard accounting policies and procedures pertaining the City's
auditing of Licensee's accounting records which are considered by Licensee to be proprietary and
confidential. Records shall be kept for at least six years. Permittee shall maintain records sufficient
to show its compliance with the requirements of this Master Permit and shall produce those records
within thirty (30) days of a City request. Such written notice from the City must identify with
specificity the period for which the City wishes to conduct its audit.
Section 17. Indemnification and Waiver. As consideration for the issuance of this Master
Permit, Permittee shall indemnify the City as follows:
A. Permittee hereby releases, covenants not to bring suit and agrees to indemnify,
defend and hold harmless the City, its elected and appointed officers, officials, employees, agents,
consultants, volunteers, 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:
For which the negligent acts or omissions of Pennittee, its agents, servants,
officers or employees in performing the activities authorized by this Master
Permit are the proximate cause;
2. By virtue of Permittee's exercise of the rights granted herein;
3. By virtue of the City permitting Permittee's use of the City's Public Ways
or other public property;
4. Based on the City's inspection or lack of inspection of work performed by
Permittee, its agents and servants, officers or employees in connection with
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work authorized on a Facility, the Public Ways, or property over which the
City has control pursuant to this Master Permit or pursuant to any other
permit or approval issued in connection with this Master Permit;
5. Arising as a result of the negligent acts or omissions of Permittee, its agents,
servants, officers or employees in barricading, instituting trench safety
systems or providing other adequate warnings of any excavation,
construction, or work upon the Public Ways, in any Public Way, or other
public place, or work upon a Facility, in performance of work or services
under this Master Permit; and
6. Based upon radio frequency emissions or radiation emitted from
Permittee's equipment or Facilities, regardless of whether Permittee's
equipment or Facilities complies with applicable federal statutes and/or
FCC regulations related thereto.
B. The provisions of Subsection A of this Section shall apply to claims against the
City 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. It is expressly agreed and understood that this assumption of potential liability for actions
brought against the City by the aforementioned employees is with respect to claims against the
City arising by virtue of Permittee's exercise of its rights. To the extent required to provide this
indemnification, Permittee waives its immunity under Title 51 RCW as provided in RCW 4.24.115.
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 Master Permit without
Permittee's waiver thereof.
C. Inspection or acceptance by the City of any work performed by the Permittee at the
time of completion of construction shall not be grounds for avoidance of any of these covenants
of indemnification. Provided that Permittee has been given prompt written notice by the City of
any such claim, said indemnification obligations shall also extend to claims which are not reduced
to a suit and any claims which may be compromised prior to the culmination of any litigation or
the institution of any litigation. Permittee shall control the defense of any claim under which it is
providing indemnification, and the City has the right to participate in the defense of any such claim,
and has the right to approve any settlement or other compromise of any such claim.
D. If Permittee refuses the tender of defense in any suit or any claim, said tender having
been made pursuant to this Section, and said refusal is subsequently determined by a court having
jurisdiction (or such other tribunal that the parties shall agree to the matter), to have been a
wrongful refusal on the part of the Permittee, then Permittee shall pay all of the City's costs for
defense of the action, including all reasonable expert witness fees, reasonable attorney's fees, the
reasonable costs of the City, and reasonable fees of recovering under this Subsection.
E. The obligations of Permittee under the indemnification provisions of this Section
shall apply regardless of whether liability for damages arising out of bodily injury to Persons or
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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 attorney's
fees were caused by the sole negligence or any willful, malicious, or criminal act on the part of the
City, its officers, agents, employees or contractors. In the event that a court of competent
jurisdiction determines that a Master Permit is subject to the provisions RCW 4.24.115, the parties
agree that the indemnity provisions hereunder shall be deemed amended to conform to said statute
and liability shall be allocated as provided therein.
F. Notwithstanding any other provisions of this Section, Permittee assumes the risk
of damage to its Facilities located in the Public Ways and upon City -owned property occurring as
a result of or in connection with any public works, public improvements, construction, excavation,
grading, filling, or work of any kind on such City property or within the Public Ways by or on
behalf of the City, regardless of whether such activities are conducted by the City, its officers,
agents, employees and contractors, except to the extent any such damage or destruction is caused
by or arises from the sole negligence or any willful, malicious, or criminal act 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. In no event shall the City be
liable for any indirect, incidental, special, consequential, exemplary, or punitive damages,
including by way of example and not limitation lost profits, lost revenue, loss of goodwill, or loss
of business opportunity in connection with its performance or failure to perform. 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 sole negligence or any willful or malicious actions on the part of the City, its
officers, agents, employees or contractors.
G. These indemnification requirements shall survive the expiration, revocation, or
termination of this Master Permit or any other permits or approvals related thereto.
Section 18. Insurance. The Permittee, and any subcontractors performing services on its
behalf, 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, for its inspection, an insurance certificate together with an
endorsement including the City, and its elected and appointed officers, officials, employees,
agents, consultants, volunteers, and representatives as additional insureds prior to the
commencement of any work or installation of any Facilities pursuant to this Master Permit. Such
insurance certificate shall evidence:
A. Commercial general liability insurance as per ISO Form CG 00 01 or its
equivalent, written on an occurrence basis, including contractual liability coverage, and shall cover
liability arising from premises, operations, independent contractors, products -completed
operations, personal injury and advertising injury, and liability assumed under an insured contract.
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There shall be no exclusion for liability arising from explosion, collapse or underground property
damage. The Public Entity shall be included as an additional insured under the Permittee's
Commercial General Liability insurance policy by endorsement with respect this Master Permit
using ISO endorsement CG 20 12, with limits of $5,000,000 per occurrence and $10,000,000 in
the aggregate for bodily injury and property damage.
B. Commercial Automobile liability covering all owned, non -owned, hired and
leased vehicles with a combined single limit of $5,000,000.00 for each accident for bodily injury
and property damage. Coverage shall be at least as broad as Insurance Services Office (ISO) form
CA 00 01.
C. Worker's compensation within statutory limits and employer's liability insurance
with limits of $1,000,000.00 each accident/disease/policy limit, which may be self -insured by
Permittee for this Section 18.C. The Permittee shall provide stop gap employer liability coverage
in the amount of $1,000,000 per accident, per disease policy limit, per disease per employee.
D. Contractors Pollution Liability coverage or self-insurance in the amount of
$2,000,000 per claim and in the aggregate covering third party claims for bodily injury, property
damage or cleanup costs as required by law, where the pollution is caused during and by
Permittee's operations under this Agreement.
E. Excess umbrella liability policy with limits of $5,000,000 per occurrence and in
the annual aggregate. It shall be excess over Permittee's Commercial General Liability and
Automobile Liability insurance.
F. Insurance shall be placed with insurers with a rating of A.M. Best & Company's
Key rating Guide of A, VII Overall and a Financial Size Category of VII. The liability insurance
policies required by this Section shall be maintained by the Permittee throughout the term of this
Master Permit, and such other period of time during which the Permittee is operating without a
Master Permit hereunder, or is engaged in the removal of its Facilities. Payment of deductibles
and self -insured retentions shall be the sole responsibility of the Permittee. The commercial
general liability insurance 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. The
Permittee's insurance shall be primary insurance with respect to the City, its elected and appointed
officers, officials, employees, agents, consultants, volunteers, and representatives. Any insurance
maintained by the City shall be in excess of the Permittee's insurance and shall not contribute with
it. Permittee's maintenance of insurance shall not be construed to limit the liability of Permittee to
the coverage provided by such insurance or otherwise limit the City's recourse to any remedy
available at law or equity.
G. In addition to the coverage requirements set forth in this section, Permittee must
notify the City of any cancellation or reduction of any required coverage that is not replaced.
Within 30 days after receipt by the City of said notice, and in no event later than 15 days prior to
said cancellation or intent not to renew, Permittee shall obtain and furnish to the City a replacement
insurance certificate meeting the requirements of this Section.
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Section 19. Inventory.
Permittee shall maintain a current inventory of its Facilities throughout the Term of Master
Permit. Permittee shall provide to the City a copy of the inventory report no later than one hundred
eighty (180) days after the Effective Date of this Master Permit, and shall be updated within thirty
(30) days of request by the City. The inventory report shall be provided in hard copy and digital
copy. The inventory report shall include GIS coordinates, date of installation, type of pole used for
installation, description/type of installation for each Small Wireless Facility installation and
photographs taken before and after the installation of the Small Wireless Facility and taken from
the public street. Small Wireless Facilities that are abandoned or whose use has been discontinued
per ECDC 20.50.140, shall be included in the inventory report and Permittee shall provide the
same information as is provided for active installations as well as the date the Small Wireless
Facilities were abandoned or discontinued, and the date of removal from the Right -of -Way. The
City shall compare the inventory report to its records to identify any discrepancies, and the parties
will work together in good faith to resolve any discrepancies. Permittee is not required to report
on future inventory reports any abandoned or discontinued Small Wireless Facilities which were
removed from the Right -of -Way since the last reported inventory. Inventory required to be
maintained and provided under this Section 19 shall be at no cost to the City.
After construction is complete, Permittee shall provide the City with accurate copies of all
as -built plans and maps showing the location of all components meeting the definition of Facilities
placed in the Right -of -Way, in a form and content prescribed by the Public Works 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 Public Works Director.
Section 20. Abandonment and Removal of the Permittee's Facilities.
In addition to the abandonment and removal requirements of ECDC 20.50.140, Permittee
agrees to the following:
Upon the date of expiration, termination, or revocation of the rights granted under this Master
Permit, within sixty (60) days the Permittee must remove the Facilities and any structures in
accordance with the requirements of ECDC 20.50.140 and this Section 20. If Permittee fails to
remove all Facilities in accordance with ECDC 20.50.140 and this section, then the City shall,
upon at least thirty (30) days advance written notice to Permittee, have the authority to take any of
the following actions: (1) physically remove the Facilities and charge all costs for removal and all
costs for storage or disposal to the Permittee; (2) compel the Permittee to remove any such
Facilities through judicial action; or (3) take title of such Facilities.
Section 21. Safety Requirements.
A. Permittee shall, at all times and at its sole responsibility and expense, comply with
all applicable laws, standards and regulations relating to the installation, operation, maintenance,
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repair and/or removal of its Facilities. In accordance with applicable federal, state, and local safety
requirements, Permittee shall at all times employ reasonable and ordinary care and shall install and
maintain and use commonly accepted methods and devices for preventing failures and accidents
which are likely to cause damage, injury, or nuisance to the public and/or workers. The Facilities
shall at all times be kept and maintained in a safe, suitable condition, and in good order and repair.
B. As an exercise of its police powers in the interest of the public health, safety, and
welfare, and to the extent not preempted by federal law, the City may require verification of
Permittee's compliance with any health and safety laws and regulations applicable to its Facilities
at Permittee's cost and expense. The City may, but shall have no obligation to, conduct inspections,
and Permittee shall cooperate with any such inspections and provide all information requested by
the City as it may reasonably determine is necessary as part of its inspection. Permittee shall
reimburse the City for its reasonable costs related to all health and safety inspections according to
the procedures of Section 14; PROVIDED THAT with respect to any RF emissions inspections,
Permittee shall only be charged if Permittee is found to be out of compliance with FCC standards.
C. If a violation of the National Electrical Safety Code or other applicable regulation
is found to exist by the City, the City will, after discussions with Permittee, establish a reasonable
time for Permittee to make necessary repairs. If the repairs are not made within the established
time frame, the City may make the repairs itself or have them made and collect all reasonable costs
thereof from Permittee.
D. Notwithstanding the foregoing, if either party discovers that the emissions from a
Facility exceed the FCC standards, and if discovered by the City then also after testing and
certification of test results from a qualified RF engineer, then Permittee shall immediately turn off
the Facility or portion thereof committing the violation, until the emissions exposure is remedied.
Upon any City discovery of violation, notification shall be made verbally by calling 1-800-832-
6662 and by email notice to REleaseAdmin@att.com. Permittee is required to promptly turn off
that portion of the Facility that is in violation, no later than forty-eight (48) hours after date and
time of email notice or of its own discovery of noncompliance.
E. Pursuant to ECDC 20.50.070, upon each application for a wireless
communications facility permit, Permittee shall provide the certificate of an RF engineer with
knowledge of the proposed development that the small wireless facility network will comply with
RF standards adopted by the FCC. Permittee shall further provide proof of FCC and other
regulatory approvals required to provide the service and to utilize the technology sought to be
installed. Permittee shall thereafter perform any testing and provide certification of the Facilities
as may be requested by FCC or any other government agency with the authority to regulate
exposure to RF emissions, and Permittee will provide a copy of any such compliance reports to
the City.
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Section 22. Construction Bond. Before undertaking any of the work, installation,
improvements, construction, repair, relocation or maintenance authorized by this Master Permit,
the Permittee shall furnish a Right -of -Way Construction Bond written by a corporate surety
acceptable to the City equal to at least one hundred twenty five percent (125%) of the estimated
cost of restoring the Public Ways of the City to the pre -construction condition required by Section
11 (Restoration after Construction) of this Master Permit. Said bond shall be required to remain
in full force until sixty (60) days after completion of the construction of Permittee's Facilities and
other improvements from the Public Ways of the City. In the event that a bond issued to meet the
requirements of this Section is canceled by the surety, after proper notice and pursuant to the terms
of said bond, Permittee shall, prior to expiration of said bond, be responsible for obtaining a
replacement bond which complies with the terms of this Section.
Section 23. Maintenance Bond. Permittee shall furnish a maintenance bond written by a
corporate surety acceptable to the City equal to at least fifteen percent (15%) of the original
Construction Bond amount which shall warrant all restoration work for a period of two (2) years.
The Maintenance Bond must be in place before City may release the Construction Bond. In the
event that a bond issued to meet the requirements of this Section is canceled by the surety, after
proper notice and pursuant to the terms of said bond, Permittee shall, prior to expiration of said
bond, be responsible for obtaining a replacement bond which complies with the terms of this
Section.
Section 24. Modification. The City and the Permittee hereby reserve the right to alter,
amend or modify the terms and conditions of this Master Permit upon the written agreement of
both parties to such alteration, amendment or modification. Said modifications shall be approved
by the City by ordinance and accepted by the Permittee consistent with Section 41 (Acceptance)
hereof.
Section 25. Forfeiture and Revocation.
A. This Master Permit may be terminated for failure by Permittee to comply with the
material provisions hereof and other provisions of the Edmonds Municipal Code. In addition to
termination, the City may pursue other rights or remedies as may be available to it herein, or in
law or in equity.
B. If the City has reason to believe that Permittee is in violation of this Master Permit
or other provisions of the Edmonds Municipal Code, the following procedures shall be followed
by the City:
1. The City shall provide Permittee with a detailed written notice, by certified
mail, detailing the violation, the steps necessary to cure such violation, and a reasonable time
period within which the violation must be cured. Within thirty days (30) thereafter, Permittee shall
respond demonstrating that no violation occurred, that any problem has been corrected, or with a
proposal to correct the problem within a specified period of time.
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2. Permittee may request an extension of time to cure an alleged violation if
construction is suspended or delayed by the City, or where unusual weather, natural consequences
(e.g., earthquakes, floods, etc.), extraordinary acts of third parties, or other circumstances which
are reasonably beyond the control of Permittee delay progress, provided that Permittee has not,
through its own actions or inactions, contributed to the delay. The amount of additional time
allowed will be determined by the City. The extension of time in any case shall not be greater than
the extent of the actual non-contributory delay experienced by Permittee.
3. If said response is not satisfactory to City, the City may declare Permittee
to be in default, with written notice to Permittee in accordance with the Notice requirements of
this Master Permit. Within ten business days after notice to Permittee, Permittee may deliver to
the City a request for a hearing before the City Council. If no such request is received, the City
may declare the Master Permit terminated for cause and/or pursue other rights or remedies as may
be available to it herein, or in law or in equity, including but not limited to obtaining a court order
compelling specific performance and recovery of damages and costs incurred by the City, or in
lieu of the foregoing monetary damages, collecting liquidated damages per paragraph C below.
4. If Permittee files a timely written request for a hearing, such hearing shall
be held within thirty (30) days after the City's receipt of the request therefor. Such hearing shall
be open to the public and Permittee and other interested parties may offer written and/or oral
evidence explaining or mitigating such alleged non-compliance. Within ten days after the hearing,
the City Council, on the basis of the record, will make the determination as to whether there is
cause for termination, whether the Master Permit will be terminated, and/or to pursue other rights
or remedies. The City Council may in its sole discretion fix an additional time period to cure
violations. If the deficiency has not been cured at the expiration of any additional time period or
if the City Council does not grant any additional period, the City Council may, by resolution
declare the Master Permit to be terminated and forfeited and/or pursue other rights or remedies.
5. If Permittee appeals revocation and termination, such revocation may be
held in abeyance pending judicial review by a court of competent jurisdiction, provided the
Permittee is otherwise in compliance with this Master Permit. While revocation is held in
abeyance, City may suspend the issuance of additional permits. In any such appeal, Permittee
shall be responsible for the costs of preparing and filing the City's administrative record with the
Court and such costs shall be paid prior to the City's filing thereof.
C. In the event that the City elects to collect liquidated damages, said damages shall
be five hundred dollars ($500.00) per day, per violation, for each day beyond thirty (30) days that
Permittee has been in violation. If liquidated damages are used, then those damages shall be the
exclusive monetary remedy for the breach.
D. If this agreement is terminated for cause, the sixty (60) day clock referenced in
Section 20 (Abandonment and Removal of the Permittee's Facilities) begins to run the date the
City or City Council declares the Master Permit terminated for cause in accordance with the
procedures of this Section 25; Provided that if Permittee appeals revocation and termination
pursuant to paragraph B(5) of this Section 25, then paragraph B(5) shall govern.
19
E. Permittee shall not be deemed to be in default, failure, violation, or non-compliance
with any provision of this Master Permit where performance was rendered impossible due to
materially, substantially, and reasonably to an act of God, fire, flood, storm, or other element or
casualty, theft, war, disaster, strike, lock -out, boycott, prevailing war or war preparation, or bona
fide legal proceedings, beyond the control of Permittee.
Section 26. Security
A. At the same time as providing acceptance of this Master Permit, Permittee shall establish
a permanent security fund in the amount of Fifty Thousand Dollars ($50,000) to guarantee the full
and complete performance of the requirements of this Master Permit and to guarantee payment of
any costs, expenses, damages, or loss the City pays or incurs, including monetary penalties,
because of any failure attributable to Permittee to comply with the codes, ordinances, rules,
regulations, or permits of the City. The amount of the Security Fund shall not be construed to limit
Permittee's liability or to limit the City's recourse to any remedy to which the City is otherwise
entitled at law or in equity.
B. Permittee shall replenish the security fund within fourteen (14) days after written notice
from the City that there is a deficiency in the amount of the fund.
C. Upon termination or expiration of the Master Permit, all funds remaining in the Security
Fund shall be returned to Permittee within thirty (30) days after removal of Permittee's Facilities
in the Public Ways.
Section 27. Hazardous Substances. Permittee shall not introduce or use any hazardous
substances (chemical or waste), in violation of any applicable law or regulation, nor shall Permittee
allow any of its agents, contractors or any person under its control to do the same. Permittee will
be solely responsible for and will defend, indemnify and hold the City, its officers, officials,
employees and agents harmless from and against any and all claims, costs and liabilities including
reasonable attorneys' fees and costs, arising out of or in connection with the cleanup or restoration
of any property associated with Permittee's use, storage, or disposal of hazardous substances, or
the use, storage or disposal of such substances by Permittee's agents, contractors, or other persons
acting under Permittee's control.
Section 28. Cily Ordinances and Regulations. Permittee agrees to comply with all present
and future federal, state, and local laws, ordinances, rules, and regulations. This Master Permit is
subject to ordinances of general applicability enacted pursuant to the City's police powers. 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 Master Permit,
including any 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.
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Section 29. Survival. All of the provisions, conditions, and requirements of this Master
Permit shall be in addition to any and all other obligations and liabilities the Permittee may have
to the City at common law, by statute, or by contract. The provisions, conditions, and requirements
of Sections 8, ReIocation of Facilities; 9, Undergrounding of Facilities: 10, Work in Public
Ways; 11, Restoration after Construction, 13, Dangerous Conditions. Authority for City to
Abate. 17, Indemnification and Waiver; 18, Insurance; 20, Abandonment and Removal of the
Permittee's Facilities, 26 Security Fund, and 27 Hazardous Substances, shall survive the expiration
or termination of this Master Permit, and any renewals or extensions thereof. All of the provisions,
conditions, regulations and requirements contained in this Master Permit shall further be binding
upon the heirs, successors, executors, administrators, legal representatives and assigns of the
Permittee and all privileges, as well as all obligations and liabilities of the Permittee shall inure to
its heirs, successors, and assigns equally as if they were specifically mentioned wherever the
Permittee is named herein.
Section A Severability. In any section, sentence, clause, or phrase of this Master Permit
should be held to be invalid or unconstitutional by a court of competent jurisdiction, such invalidity
or unconstitutionality shall not affect the validity or constitutionality of any other section, sentence,
clause, or phrase of this Master Permit.
Section 31. Assi n� This Master Permit may not be assigned or transferred without
prior written notice to the City, except that the Permittee may freely assign this Master Permit
without notice in whole or part to a parent, subsidiary, or Affiliate 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 notice shall
not be required unless and until the secured party elects to realize upon the collateral.
Permittee may, without the prior written notice to the City: (i) Lease the Facilities, or any
portion thereof, to another; (ii) Grant an Indefeasible Right of User Interest in the Facilities, or any
portion thereof, to another; or (iii) Offer or provide capacity or bandwidth in its Facilities to
another, PROVIDED THAT: Permittee at all times retains exclusive control over such Facilities
and remains solely responsible and liable for the performance of all obligations under this Master
Permit, including but not limited to responsible for locating, servicing, repairing, relocating or
removing its Facilities pursuant to the terms and conditions of this Master Permit. Permittee cannot
grant any rights to a Lessee that are greater than any rights Permittee has under this Master Permit.
Any Lessee shall not be construed to be a third party beneficiary under this Master Permit.
Section 32. Vacation. The City may at any time by ordinance vacate all or any portion of
the area affected by this Master Permit, and the City shall not be liable for any damages or loss to
the Permittee by reason of such vacation. The City shall strive to notify the Permittee in writing at
least sixty (60) days prior to vacating all or any portion of any such area in which Permittee is
located. , This Master Permit shall terminate with respect to such vacated area after sixty (60) days
written notice to Permittee.
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Section 33. Notice of Tariff Changes. If applicable to Permittee, Permittee shall, when
making application for any changes in tariffs affecting the provisions of this Master Permit, notify
the City in writing of the application and provide the Public Works Director with a copy of the
submitted application within three days of filing with the Washington Utilities and Transportation
Commission or other regulatory body. If applicable to Permittee, Permittee shall further provide
the Public Works Director with a copy of any actual approved tariff change affecting the provisions
of this Master Permit.
Section 34. Notice. All notices, requests, demands, and communications hereunder will
be given by first class certified or registered mail, return receipt requested, or by a nationally
recognized overnight courier, postage prepaid, to be effective when properly sent and received,
refused or returned undelivered. Notices will be addressed to the parties as follows:
CITY:
City of Edmonds
Public Works Director
121 5th Avenue North
Edmonds, WA 98020
Telephone: (425) 771-0220
With a copy to the City Attorney at the same address.
PERMITTEE:
New Cingular Wireless PCS, LLC
Attn: Network Real Estate Administration
Site No. City of Edmonds Wireless Franchise Agreement (WA)
1025 Lenox Park Blvd NE, 3`d Floor
Atlanta, GA 30319
With a copy to:
New Cingular Wireless PCS, LLC
Attn: AT&T Legal Dept — Network Operations
Site No. City of Edmonds Wireless Franchise Agreement (WA)
208 S. Akard Street
Dallas, TX 75202-4206
Section 35. Entire Master Permit. This Master Permit constitutes the entire understanding
and agreement between the parties as to the subject matter herein and no other agreements or
understandings, written or otherwise, shall be binding upon the parties upon approval and
acceptance of this Master Permit. Provided further, that the City and Permittee reserve all rights
22
they may have under law to the maximum extent possible and neither the City nor Permittee shall
be deemed to have waived any rights they may now have or may acquire in the future by entering
into this Master Permit.
Section 36. Attorneys Fees. Except as otherwise provided in this Master Permit, if any
suit or other action is instituted in connection with any controversy arising under this Master
Permit, each party shall be responsible for its own attorneys' fees and costs; This section shall
have no effect on the indemnity and defense obligations of this Master Permit.
Section 37. 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 38. Governing LawNenue. This Master Permit shall be governed by and
construed in accordance with the laws of the state of Washington. The venue and jurisdiction over
any dispute related to this Master Permit shall be with the Snohomish County Superior Court, or,
with respect to any federal question, with the United States District Court for the Western District
of Washington, at Seattle.
Section 39. Titles. The section titles are for reference only and should not be used for the
purpose of interpreting this Master Permit.
Section 40. Acceptance. Within sixty (60) days after the passage and approval of this
ordinance, this Master Permit shall be accepted by Permittee by its filing with the City Clerk an
unconditional written acceptance thereof. Failure of the Permittee to so accept this Master Permit
within said period of time shall be deemed a rejection thereof, and the rights and privileges herein
granted shall, after the expiration of the sixty (60) day period, absolutely cease and determine,
unless the time period is extended by ordinance duly passed for that purpose.
Section 41. 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.
23
CITY OF EDMONDS
OR MICHAEL NELSON
ATTEST/AUTHENTICATED:
-
CITY CLERK SCOTT PASSEY
APPROVED AS TO FORM:
OFFICE OF THE CITY ATTORNEY:
By:
JEFF TARADA
FILED WITH THE CITY CLERK: June 11, 2021
PASSED BY THE CITY COUNCIL: June 15, 2021
PUBLISHED: June 18, 2021
EFFECTIVE DATE: June 20, 2021
ORDINANCE NO.: 4224
24
SUMMARY ORDINANCE NO. 4224
of the City of Edmonds, Washington
On the 15th day of June, 2021, the City Council of the City of Edmonds, passed Ordinance
No. 4224. 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 NEW CINGULAR WIRELESS
PCS, LLC, A DELAWARE LIMITED LIABILITY COMPANY, A
NON-EXCLUSIVE MASTER PERMIT TO INSTALL,
OPERATE, AND MAINTAIN SMALL WIRELESS
TELECOMMUNICATIONS FACILITIES WITHIN THE PUBLIC
RIGHT-OF-WAY OF THE CITY OF EDMONDS,
WASHINGTON, PRESCRIBING CERTAIN RIGHTS, DUTIES,
TERMS, AND CONDITIONS WITH RESPECT THERETO,
ESTABLISHING AN EFFECTIVE DATE.
The full text of this Ordinance will be mailed upon request.
DATED this 16th day of June, 2021.
91 egoc,M5 rA W_ -role
CITY CLERK, SCOTT PASSEY
25
Everett Daily Herald
Affidavit of Publication
State of Washington }
County of Snohomish } ss
Maggie Boyd being first duly sworn, upon oath
deposes and says: that he/she is the legal
representative of the Everett Daily Herald a
daily newspaper. The said newspaper is a legal
newspaper by order of the superior court in the
county in which it is published and is now and
has been for more than six months prior to the
date of the first publication of the Notice
hereinafter referred to, published in the English
language continually as a daily newspaper in
Snohomish County, Washington and is and
always has been printed in whole or part in the
Everett Daily Herald and is of general
circulation in said County, and is a legal
newspaper, in accordance with the Chapter 99
of the Laws of 1921, as amended by Chapter
213, Laws of 1941, and approved as a legal
newspaper by order of the Superior Court of
Snohomish County, State of Washington, by
order dated .June 16, 1941, and that the annexed
is a true copy of EDH930360 ORDS 4223-4225 as
it was published in the regular and entire issue
of said paper and not as a supplement form
thereof for a period of 1 issue(s), such
publication commencing on 06/18/2021 and
ending on 06/18/2021 and that said newspaper
was regularly distributed to its subscribers
during all of said period.
The amount of the fee for such publication is
$43.40.
Subscribed and sworn fore me on this
Af r day of
Notary Public in and for the State of
Washington.
U, 4 I..Lnnnd. -I. I:(;A I. AIDS 1 141111416
\1111-1 PASSI:V
Linda Phillips
Notary Public
Of Washington
My R�Pol+finerd ISIOres 08129QO2
Classified Proof
ORDINANCE SUMMARY
of If le CI 01 rmcil di. Wa.4NnpI0n
On ft I5f11 day oI June, 2021, the Cily Council vI the City of
EdrlontlY, Fussed Ure wimino Ofanance3, the Summaries of said
ordinences:.oneis5ngaf Hiles are pravided a%.fallows
ORDINANCE ND.4223
AN ORDINANCE OF THE CITY OF EDMONDS,
WASHINGTON, REPEALING EDMONDS CITY CODE
CHAPTER 10813REGARDING THE SALARY COMM1SSON
ORDINANCE NO. 3224
AN ORDINANCE OF THE CITY qF EDMONDS,
WASHINGTON, GRANTING TO NEW CINGU AR
MAELESS PCS. LLC, A DELAWARE LIMITED LIAStUTY
COMPANY, A NON-E%CLVSIVE MASTER PERMIT
AGRENTAIN
SMALLLMIAFIELSSENT To I TELECOMMUNICATIONS RATEFACIL TIES
"THIN THE pUsL1G RIC4H7-C�F-WAY OF THE CITY OF
EDMONOS. WASHINGTON. PRESCRIBING CERTAIN
R1GH:S- DUTIES. TERMS, AND CONDITIONS WITH
RESPECT THERETO. ESTABLISHING AN EFFECTIVE
DATE,
ORDINANCE HO.42a5
AN ORDINANCE OF THE CITY OF EDMONDS,
WASFJPNGTON, A{dENOING CHAPTER 2.35 ECC
1VACATION AND SICK LEAVE] TO ADD 41JNE 1471H
JUNETEENTHj AS A CITY HOLIDAY; PROVIDING FOR
SEYERAoI1,fTY; ANOSETTINGAN EFFECTIVE DATE
Thu fu5 tsxt or mese.OrAnances wlll be mslled upon requeul.
CATER blis 151is Day of June. 2021.
CITY CLERK,SCOTT PASSEY
Published: June 18,2021. EOH930360
Proofed by Boyd, Maggie, 06/18/2021 08:30:48 am Page: 2