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