Ordinance 4368ORDINANCE NO. 4368
AN ORDINANCE OF THE CITY OF EDMONDS, WASHINGTON, GRANTING TO NEW
CINGULAR WIRELESS PCS, LLC, A DELAWARE LIMITED LIABILITY COMPANY,
SUCCESSOR IN INTEREST TO AT&T WIRELESS SERVICES OF WASHINGTON, LLC, AN
OREGON LIMITED LIABILITY COMPANY, D/B/ AAT &T WIRELESS, A NON-EXCLUSIVE
MASTER PERMIT AGREEMENT TO INSTALL, OPERATE, AND MAINTAIN MACRO
WIRELESS TELECOMMUNICATIONS FACILITIES WITHIN A CERTAIN DESIGNATED
AREA OF 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, successor in interest to AT&T Wireless
Services of Washington, LLC, an Oregon limited liability company, d/b/a AT&T Wireless with its
principal offices at 1025 Lenox Park Boulevard NE, Atlanta, GA 30319 ("Permittee") has an
existing franchise with the City of Edmonds that is Ordinance 3441, called therein a Master Use
Agreement, authorizing the installation of certain macro facilities in the city's right of way at 9227
Olympic View Drive and 9114 207Lh Place, as ex tended under ordinances 4322 and 4348·
WHEREAS, Permittee also has an existing franchise with the City of Edmonds that is
Ordinance 3534, called therein a Master Use Agreement, authorizing the installation of certain
macro facilities in the city's right of way at 402 Main Street, expiring in 2025;
WHEREAS, Permittee has requested a renewal of its franchises and that they be combined
into one franchise;
WHEREAS, the City is aware ofno breach of any of Permittee's obligations under any of
the above described franchises, and Permittee here represents that it has complied with all terms
of each of the above described franchises to date and with applicable law;
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 franchise, 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. "ECDC" means Edmonds Community and Development Code.
d. "Facility" or "Facilities" shall mean only the Permittee's owned, operated,
or controlled Macro Facilities as defined in the Edmonds Community and Development
Code (ECDC) 20.50, incorporated herewith, and attendant structures and shall include all
cables, wires, conduit,, ducts, pedestals, and any associated converter, equipment, or other
facilities within the city's Right of Way, designed and constructed for the purpose of
providing Telecommunications Service.
e. "FCC" means the Federal Communications Commission, or any successor
governmental entity thereto.
f. "Master Permit Agreement" or "Master Permit" or "Agreement" shall mean
this franchise agreement, granted by the City pursuant to ECDC 20.50.020(C) and Chapter
35.99 RCW, through this Ordinance, or a subsequently adopted ordinance.
g. "Permittee" means New Cingular Wireless PCS, LLC, a Delaware limited
liability company, or the lawful predecessor, successor, transferee, or assignee thereof.
h. "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.
i. "Public Ways" or "Rights-of-Way" or "Right-of-Way" means land
acquired or dedicated for public roads and streets in the Service Area, but does not include:
(a) Land dedicated for roads, streets, and highways not opened and not
improved for motor vehicle use by the public;
(b) Structures, including poles and conduits, located within the right-of-
way;
(c) Federally granted trust lands or forest board trust lands;
( d) Lands owned or managed by the state parks and recreation
comm1ss1on; or
(e) 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; and
(f) buildings or other City-owned physical facilities.
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Public utility easements and utility strips are expressly excluded to the extent they are not
part of the Right-of-Way. If Permittee desires to locate within any easement owned by
the city that is not part of the Right-of-Way, then Permittee must obtain separate
authorization to do so which may be granted or denied by the city in its sole discretion.
j. "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.
k. . "Right-of-Way Construction Permit" or "Permit" shall mean that permit
required of Permittee by the City in order to perform work at a particular location in the
Right-of-Way, pursuant to ECDC Chapter 18.60.
1. "Service Area" means the present municipal boundaries of the City, and
shall include any additions thereto by annexation or other legal means.
m. "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 service as defined in RCW
35.99.010 nor 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 and franchise
would be required.
Section 2. Term . Conditions. and Provisions of ECDC Chapters 20.50 and 18.60 Incorporated by
Reference. The terms, conditions, and provisions of Chapter 20.50 ECDC, and Title 18 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 Chapter 20.50 ECDC and Title 18 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 ECDC and Title 18
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 Rights-of-Way for the
purpose of providing Telecommunications Service. However, the Permittee is only authorized to
place its Facilities in the Right-of-Way described in Exhibit A hereto.
Section 4. Grant 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
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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. The authority granted herein
extends only to those portions of the Public Ways to which the City has the right to grant access
and shall be deemed to grant no more than those rights which the city may have the undisputed
right and power to give.
Section 5. Wirel ess Commlmication Facility Permi ts and Right-o f -Way Cons truction Permits
Required.
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 Chapter 18.60, 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.
Except as otherwise provided in this Master Permit Agreement, no work shall commence within
any Public Way without said Right-of-Way Construction Permit. The City may adopt procedures
combining the applications and resulting permits for wireless communication facility and Right-
of-Way Construction Permits.
Section 6. Term of Master Permit Standards for Renewal.
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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 41 (Acceptance and Grant Fee), 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 ofECDC 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,
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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' written 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. 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 following procedures shall apply:
1. Within a reasonable time, which shall be no less than thirty (30) days prior to the
commencement of such improvement project, the City shall provide the Permittee
with written notice requiring such relocation. Provided, however, that in the event
of 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. The City shall 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
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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 ofits 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 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.
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 Master Permit, in the event of a conflict between this Master Permit and the provisions of
applicable state law, the provisions of the applicable state law shall control. In the event of an
unforeseen emergency that creates a threat to the public safety, health, or welfare, the City may
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require the Permittee to relocate its Facilities at Permittee's own expense, any other portion of this
Section notwithstanding.
J. If Permittee fails, neglects, or refuses to remove or relocate its Facilities as directed by
the City as described in this Section 8, then the City may, but shall have no obligation, perform
such work or cause it to be done, and the City's costs shall be paid by Permittee pursuant to Section
14.
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, Facilities may be required to relocate to an alternative approved support
structure or pole consistent with Chapter 20.50 ECDC 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 Ways.
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 1st of each calendar year, the Permittee 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 Permittees, 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
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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 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 Engineering Division by email 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
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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 and any and all cost
recovery ordinances associated with activities undertaken through the authority granted in this
Master Permit or under the laws of the City. Permit fees shall be paid before issuance. Where the
City incurs costs and expenses for which a fee is not established, Permittee 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 actual
costs the City incurs in response to any emergency involving the Permittee's Facilities.
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. Unless otherwise provided
for in this Master Permit or ordinance of the city, payment shall be made within thirty (30) calendar
days of the date of receiving an itemized bill.
Any payment received after the due date shall bear interest until paid at the rate of twelve percent
(12%) per annum.
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 except a site specific charge
pursuant to agreement between the City and a service provider of personal wireless services as
described in RCW 35.21.860 and further addressed below. IfRCW 35.21.860 is amended during the
term of this Master Permit, then the City reserves its right to charge a fee to the full extent permitted
by any such amendment, and if the parties are not able to agree upon the amount of such a fee within
ninety (90) days of the effective date of any such amendment, then this Master Permit shall terminate.
The City also reserves its right to require that the Permittee obtain a separate agreement for any change
in use, which agreement may include provisions intended to regulate the Permittee's operations, as
allowed under applicable law.
B. Permittee Obligated to Pay Taxes. Nothing in this Master Permit is intended to
alter, amend, or modify the taxes and fees that may lawfully be assessed on Permittee's business
activities under this Master Permit pursuant to applicable law. This Master Permit does not limit
the City's power of taxation. Permittee 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 Permittee'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). The Parties agree on the following site
specific charges as authorized under RCW 35.21.860(1)(e):
a. For its Facilities at 9227 Olympic View Drive, the parties agree to the following
initial annual charge: ($4, 179.) FOUR THOUSAND ONE HUNDRED SEVENTY-
NINE DOLLARS.
b. For its Facilities at 9114 207th Place, the parties agree to the following initial annual
charge: ($4,179.) FOUR THOUSAND ONE HUNDRED SEVENTY-NINE
DOLLARS.
c. Notwithstanding the foregoing, the parties acknowledge that: (i) the City entered
into this Master Permit without having obtained an appraisal; (ii) the City may obtain
an appraisal(s) at any time prior to expiration of the Master Permit; and (iii) that the
City may increase the annual charge for each location based upon the appraisal(s),
PROVIDED THAT (a) any increase in the annual charge shall not be retroactive and
shall take effect upon the first day of the first month after any increased charge is
billed, with any mid-calendar year increase to be prorated; and (b) if Permittee does
not agree with the increased annual charge as determined by the appraisal, and if the
parties cannot reach agreement on the amount of the increased annual charge within
60 days after it would otherwise take effect, then Permittee may submit the amount
of the annual charge as determined by the appraisal to binding arbitration according
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to the method and process ofRCW 35.21.860. Costs shall be borne by the parties as
stated in RCW 35.21.860.
The compensation provided for in this Subsection C shall be adjusted annually, each year of the
term, by an increase of 100% of CPL If the Master Permit is under consideration for renewal as
contemplated per Section 6 above, then either will occur at the City's election: (a) the parties will
meet to revisit the provisions of this Section 15 to establish levels of compensation and annual
adjustments thereto, and if the parties cannot agree then compensation will be determined
according to RCW 35.21.860, or (b) the compensation will be adjusted by an increase of five
percent (5%) over what was due the previous year, and it shall be adjusted annually, each year of
the renewed term, by an increase of five percent (5%).
D. Annual Compensation Due Date. The compensation provided for in Subsection C
is per calendar year. The initial calendar year of compensation due under this Master Permit is a
partial year (i.e., from August 31, 2024 through December 31, 2024), and the compensation due
for said described partial calendar year shall be payable and due within thirty (30) days of the
date this ordinance is passed by council and signed by the City's mayor. Thereafter,_Permittee
shall pay annual compensation for each calendar year in full at the beginning of the calendar
year to be to be received by the City 's Finance Director on or prior to the 15 th of January. Any
payment received after the due date shall include a late payment charge equal to three percent
(3%) of the annual sum due and shall further bear interest until paid at the rate of twelve percent
(12%) per annum.
E. If Permittee's Facilities are out of service due to a relocation under the provisions
of Section 8 for the convenience of the City, then 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. The fees and charges provided for in this Section 15 have been agreed upon
during negotiation between the parties, and Permittee acknowledges and covenants not to bring
suit with respect to the amount of said fees or charges, including late charges, and hereby waives
any and all objections thereto and any and all claims against the City and its elected or appointed
officials and releases the City and its elected or appointed officials from any and all claims
related to the payment of fees and/or charges as provided for in this Section 15 and this Master
Permit generally.
Section 16. Grant Fee.
Permittee shall pay a Grant Fee which is a fee for the actual administrative expenses incurred by
the City that are related to the receiving and approving this Master Permit pursuant to RCW
35.21.860, including the costs associated with the City's legal costs incurred in drafting and
processing this Master Permit. Permittee shall pay all costs of publication of this Master Permit
and any and all notices prior to any public meeting or hearing in connection with this Master
Permit. Permittee shall further pay the franchise application fee if not already paid. Permittee shall
pay the reimbursements pursuant to this Section within thirty (30) days after receipt of an invoice
from the City. No right of way construction permits shall be issued to Permittee until such time as
the City has received payment of this Grant Fee.
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Section 17. Manner of Payment: 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 unless provided otherwise elsewhere in this Master Permit, and furnish him/her any
information related to his/her revenue collection functions reasonably requested. Site Specific
Charge payments under Section 15 shall be made by the due date therein stated, and shall be by
mail to the attention of the City Finance Director at the notice address in Section 35 unless
otherwise directed or agreed by the Finance Director. The City Finance Director may call for an
audit pertaining to payments under this Master Permit once per calendar year and not more
frequently unless the Finance Director has a reasonable basis therefore. In case of audit, the City
Finance Director may require Permittee to furnish a verified statement of compliance with
Permittee's obligations or in response to any questions. Said certificate may be required from an
independent, certified public accountant, at Permittee's expense. Permittee agrees, upon request of
the Finance Director, 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 performance of any financial obligations
under this Master Permit and also 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 the
election of the City either electronically or 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. 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 at a physical location. 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 18. 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:
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I. For which the negligent acts or omissions of Permittee, 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
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 em1ss10ns 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
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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
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 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 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.
G. These indemnification requirements shall survive the expiration, revocation, or
termination of this Master Permit or any other permits or approvals related thereto.
Section 19. Insurance.
A. Insurance Term
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The Permittee shall carry and maintain for the duration of the Master Permit Agreement
and as long as Permittee has Facilities in the Rights-of-Way, insurance against claims for
injuries to persons or damage to property which may arise from or in connection with the
Master Permit Agreement and use of the Rights-of-Way.
B. No Limitation
The Permittee's maintenance of insurance as required by the Master Permit Agreement
shall not be construed to limit the liability of the Permittee to the coverage provided by
such insurance, or otherwise limit the City's recourse to any remedy available at law or in
equity.
C. Scope oflnsurance
The Permittee shall maintain insurance of the types and coverage described below:
1. Commercial General Liability insurance shall be at least as broad as ISO occurrence
form CG 00 01 and shall cover liability arising from premises, operations, stop gap
liability, independent contractors, products-completed operations, personal injury and
advertising injury, and liability assumed under an insured contract. There shall be no
exclusion for liability arising from explosion, collapse or underground property
damage. The City shall be included as an additional insured under the Permittee's
Commercial General Liability insurance policy with respect this Master Permit
Agreement using ISO endorsement CG 20 12 or substitute endorsement providing at
least as broad coverage.
2. Automobile Liability insurance covering all owned, non-owned, hired and leased
vehicles. Coverage shall be at least as broad as Insurance Services Office (ISO) form
CA 00 01.
3. Contractors Pollution L iability insurance shall be in effect throughout the entire
Master Permit Agreement covering losses caused by pollution conditions that arise
from the operations of the Permittee. Contractors Pollution Liability shall cover
bodily injury, property damage, cleanup costs and defense, including costs and
expenses incurred in the investigation, defense, or settlement of claims. Permittee
may self-insure this coverage per Subsection L. below.
4. Workers' Compensation coverage as required by the Industrial Insurance laws of the
State of Washington.
5 . Excess or Umbrella Liability insurance shall be excess over and at least as broad in
coverage as the Permittee's Commercial General Liability and Automobile Liability
insurance. The City shall be included as an additional insured on the Permittee's
Excess or Umbrella Liability insurance policy by endorsement as respects this
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agreement. Permittee may use any combination of primary and excess insurance to
meet the total limits required.
D. Amounts oflnsurance
The Permittee shall maintain the following insurance limits:
1. Commercial General Liability insurance shall be written with limits of $5,000,000
each occurrence, $5,000,000 general aggregate.
2. Automobile Liability insurance with a combined single limit for bodily injury and
property damage of $5,000,000 per accident.
3. Contractors Pollution Liability insurance shall be written in an amount of at least
$2,000,000 per loss, with an annual aggregate of at least $2,000,000.
4. Excess or Umbrella Liability insurance shall be written with limits of $5,000,000 per
occurrence and annual aggregate. The Excess or Umbrella Liability requirement and
limits may be satisfied instead through Permittee's Commercial General Liability and
Automobile Liability insurance, or any combination thereof that achieves the overall
required limits.
E. Other Insurance Provisions
Permittee's Commercial General Liability, Automobile Liability, Excess or Umbrella
Liability, Contractors Pollution Liability insurance policy or policies are to contain, or be
endorsed to contain, that they shall be primary insurance as respect the City. Any
insurance, self-insurance, or self-insured pool coverage maintained by the City shall be
excess of the Permittee's insurance and shall not contribute with it.
F. Acceptability of Insurers
Insurance is to be placed with insurers with a current A.M. Best rating of not less than A:
VII.
G. Verification of Coverage
The Permittee shall furnish the City with original certificates and a copy of the
amendatory endorsements annually, including but not necessarily limited to the additional
insured endorsement, evidencing the insurance requirements of the Master Permit
Agreement. Upon request by the City, the Permittee shall furnish certified copies of
endorsements required in this Master Permit Agreement and evidence of all
subcontractors' coverage.
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H. Subcontractors
The Permittee shall cause each and every Subcontractor to provide insurance coverage
that complies with all applicable requirements of the Permittee-provided insurance as set
forth herein, except the Permittee shall have sole responsibility for determining the limits
of coverage required to be obtained by Subcontractors. The Permittee shall ensure that
the City is an additional insured on each and every Subcontractor's Commercial General
liability insurance policy using an endorsement as least as broad as ISO CG 20 26.
I. Notice of Cancellation
Permittee shall provide the City with 30 days advanced written notice of any cancellation
and any non-renewal of any required coverage that is not replaced.
J. Failure to Maintain Insurance
Failure on the part of the Permittee to maintain the insurance as required shall constitute a
material breach, upon which the City may, after giving five business days' notice to the
Permittee to correct the breach, terminate the Master Permit Agreement or, at its
discretion, procure or renew such insurance and pay any and all premiums in connection
therewith, with any sums so expended to be repaid to the City on demand.
K. City Full Availability of Permittee Limits
If the Permittee maintains higher insurance limits than the minimums shown above, the
City shall be insured for the full available limits of Commercial General and Excess or
Umbrella liability maintained by the Permittee, irrespective of whether such limits
maintained by the Permittee are greater than those required by this Master Permit
Agreement or whether any certificate of insurance furnished to the City evidences limits
of liability lower than those maintained by the Permittee.
L. Permittee Self Insurance
If the Permittee is self-insured or becomes self-insured during the term of the Master Permit
Agreement, Permittee or its affiliated parent entity shall comply with the following: (i)
provide the City, upon request, a copy of Permittee's or its parent company's most recent
audited financial statements, if such financial statements are not otherwise publicly
available; (ii) Permittee or its parent company is responsible for all payments within the
self-insured retention; and (iii) Permittee assumes all defense and indemnity obligations as
outlined in the indemnification section of this Master Permit Agreement.
Section 20 . Maps and Records. 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.
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Permittee shall further provide at no cost to the City accurate copies of all as-built plans and maps
and records for all existing Facilities placed in the Right-of-Way under authority of ordinance 3441
or 3534, in a format specified by the City Engineer, within 60 days of the date this Master Permit
is signed by the City's mayor.
Section 21. Abandonment and Removal of the Permittee's Facilities. In addition to the
abandonment and removal requirements of ECDC 20.50.140, incorporated herein by this
reference, Permittee agrees to the following:
Upon the expiration, termination, or revocation of the rights granted under this Agreement, the
Permittee shall remove all of its Facilities from the Public Ways of the City within ninety (90)
days of receiving notice from the Public Works 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
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. If City takes said judicial action and the court determines the city is entitled to the relief
it seeks, then Permittee shall reimburse the city its legal costs incurred.
Section 22. Restoration of Existing Facilities. If a lawfully authorized Facility is destroyed or
damaged to the extent that it must be rebuilt or replaced as follows:
(i) Permittee must apply for a new Right-of-Way Construction Permit and wireless
facilities permit prior to rebuilding or replacing the facility; and
(ii) The rebuilt or replacement facility must comply with the standards of Chapter 20.50
ECDC in effect at the time of rebuilding or replacement. Such compliance may
include, but is not limited to, a relocation to meet then current zoning standards.
Section 23. 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,
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
19
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 tum 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 tum 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.
Section 24. Bonds. As a condition of performing work in the Public Ways, and before
undertaking any of the work, the Permittee, at the City's request, shall furnish a Right-of-Way
Construction Bond (Construction Bond) and following completion a Maintenance Bond as
specified below.
A. Construction Bond. The construction bond shall be 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 Master Permit. Said bond
shall be required to remain in full force until satisfactory completion of the restoration as
determined by the City. In the event a bond issued to meet the requirements of this Section is
canceled by the surety, Permittee shall, prior to expiration of said bond, be responsible for
obtaining a replacement bond which complies with the terms of this Section.
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B. Maintenance Bond. At such time as the city determines the satisfactory completion of
the authorized work, including restoration of the Public Ways, the City may require a Maintenance
Bond which shall guarantee all restoration work for a period of two (2) years. It shall be written
by a corporate surety acceptable to the City in the amount of fifteen percent ( 15%) of the original
Construction Bond amount. 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 25. 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 and Grant Fee)
hereof.
Section 26. 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 grounds exist for revocation of a master permit
or lesser sanctions, then:
1. The City shall provide Permittee with written notice of the violation, by
certified mail, containing a short and concise statement of the nature and general facts of the
violation, the steps necessary to cure such violation, and a reasonable time period within which
the violation must be cured. Within thirty (30) days 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.
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 oftime 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
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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 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 ninety (90) 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 26; Provided that if Permittee appeals revocation and termination
pursuant to paragraph B(5) of this Section 26, then paragraph B(5) shall govern.
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.
E. City code may provide for civil penalties or abatement for code violations, and
nothing in this Section 26 prevents the City from pursuing those independent of or in conjunction
with the remedies and procedures outlined in this Section 26.
Section 27. Security Fund.
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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) by providing a letter
of credit or a performance bond reasonably acceptable to the City 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 and civil 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 28 . 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 29. City 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.
Section 30. 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, Relocation of Facilities; 9, Undergrounding of Facilities; 10, Work in Public
Ways; 11, Restoration after Construction; 13, Dangerous Conditions, Authority for City to
Abate; 14, Recovery of Costs; 15, Fees for Use of Public Ways; 17, Indemnification and
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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 31. 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 32. Assignment. 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
prior notice in whole or part to a parent, subsidiary, or Affiliate or as part of any corporate
financing, reorganization or refinancing. In such case Permittee shall provide prompt, written
notice thereafter. 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 shall provide prompt written
notice to City of any such assignment.
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 33. Vacati0n. 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.
Section 34. 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
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the Public Works Director with a copy of any actual approved tariff change affecting the provisions
of this Master Permit.
Section 35 . 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
7110 210 th Street SW,
Edmonds, WA 98026
771-0235
and to
City of Edmonds
City Engineer
121 5th Avenue North
Edmonds, WA 98020
Telephone: (425) 771-0220
With a copy to the City Attorney, c/o City Clerk, at the 121 5th Avenue 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, 3rd 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 36. Entire Master Pe1mit. This Master Permit constitutes the entire understanding and
agreement between the parties as to the subject matter herein and no other agreements or
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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
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.
The franchises adopted between the City and Permittee or City and Permittee's predecessor under
ordinance numbers 3441 and 3534 (the "Original Franchises") are superseded and replaced by this
Master Permit as of the Effective Date of this Ordinance, and this Master Permit and all exhibits
attached hereto shall constitute the entire Master Permit between the parties. The grant of this
Master Permit shall have no effect on the requirements of the Original Franchises related to
indemnification or insurance to the City against acts and omissions occurring during the period
that the Original Franchises were in effect, including Survival, and during any period in which
Permittee's Facilities were in the Right of Way of the City.
Section 37 . Attorney's 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 38. 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 39. Governing Law/Venue. 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 40. Titles. The section titles are for reference only and should not be used for the purpose
of interpreting this Master Permit.
Section 41. Acceptance and Grant Fee. 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. In
accordance with Section 16 above, Permittee shall pay to City the Grant Fee.
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Section 42. 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.
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ATTEST I AUTHENTICATED:
~SEY
APPROVED AS TO FORM:
OFFICE OF THE CITY ATTORNEY:
By:,~-
rnff ARADAY
FILED WITH THE CITY CLERK:
PASSED BY THE CITY COUNCIL :
PUBLISHED:
EFFECTIVE DATE:
ORDINANCE NO.:
CITY ~S
MA~~
September 19 , 2024
September 24, 2024
September 27, 2024
October 2, 2024
4368
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SUMMARY ORDINANCE NO. 4368
of the City of Edmonds, Washington
On the 24 th day of September, 2024, the City Council of the City of Edmonds, passed
Ordinance No. 4368. A summary of the content of said ordinance, consisting of the title , provides
as follows:
AN ORDINANCE OF THE CITY OF EDMONDS,
WASHING TON, GRANTING TO NEW CINGULAR WIRELESS
PCS, LLC, A DELAWARE LIMITED LIABILITY COMPANY,
SUCCESSOR IN INTEREST TO AT&T WIRELESS SERVICES
OF WASHINGTON, LLC, AN OREGON LIMITED LIABILITY
COMPANY, D/B/A AT&T WIRELESS, A NON-EXCLUSIVE
MASTER PERMIT AGREEMENT TO INSTALL, OPERATE ,
AND MAINTAIN MACRO WIRELESS
TELECOMMUNICATIONS FACILITIES WITHIN A CERTAIN
DESIGNATED AREA OF PUBLIC RIGHT-OF-WAY OF THE
CITY OF EDMONDS, WASHING TON, 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 24 th day of September, 2024 .
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