Ordinance 4001ORDINANCE NO.4001
AN ORDINANCE OF THE CITY OF EDMONDS,
WASHINGTON, GRANTING TO SPRINT SPECTRUM L.P.,
A DELAWARE LIMITED PARTNERSHIP, ITS MEMBER, A
MASTER USE AGREEMENT, TO INSTALL, OPERATE, AND
MAINTAIN WIRELESS COMMUNICATION FACILITIES
WITHIN A CERTAIN DESIGNATED PUBLIC RIGHT-OF-
WAY OF THE CITY OF EDMONDS, STATE OF
WASHINGTON, PRESCRIBING CERTAIN RIGHTS, DUTIES,
TERMS, AND CONDITIONS WITH RESPECT THERETO, AND
ESTABLISHING AN EFFECTIVE DATE.
WHEREAS, Sprint Spectrum L.P., ("Sprint" or "Permittee") has requested that the City
of Edmonds ("City") grant it the right to install, operate, and maintain wireless communication
facilities ("Communication Facilities," as further defined hereunder) within the public ways of
the City; and WHEREAS, the City Council has found it desirable for the welfare of the City and
its residents that a master use agreement ("Master Use Agreement" or "Agreement") to address
the installation of multiple Communication Facilities in the public ways be granted to Sprint; and
WHEREAS, the City Council has the authority under RCW 35A.47.040 to grant such
Master Use Agreement and any appropriate installation and maintenance permits ("Permits," as
further defined hereunder) as may be required to address the installation and maintenance of
specific Communication Facilities in the streets and other public properties of the City; and
WHEREAS, the City is willing to grant the rights requested subject to certain terms and
conditions, NOW, THEREFORE,
THE CITY COUNCIL OF THE CITY OF EDMONDS, WASHINGTON, DO ORDAIN
AS FOLLOWS:
Section 1. Definitions. For the purposes of this Master Use Agreement, the following
terms, phrases, words, and abbreviations shall have the meanings ascribed to them below. When
not inconsistent with the context, words used in the present tense include the future tense, words in
the plural number include the singular number and words in the singular number include the plural
number.
a. "Affiliate" means an entity which owns or controls, is owned or controlled by, or is
under common ownership with the Permittee.
b. "City" means the City of Edmonds, Washington.
C. "Communication Service" shall mean any telecommunications services,
telecommunications capacity, or dark fiber, provided by the Permittee using its Communication
Facilities, either directly or as a carrier for its subsidiaries, or Affiliates, including, but not limited
to, the transmission of voice, data or other electronic information, facsimile reproduction, burglar
alarm monitoring, meter reading and home shopping, or other subsequently developed technology
which carries an electronic signal over fiber optic cable. However, Communications Service shall
not include the provision of cable television, open video, or similar services, as defined in the
Communications Act of 1934, as amended, for which a separate permit and franchise would be
required.
d. "Communication Facilities" or "Facilities" shall mean only the Permittee's
wireless communications installations and attendant structures constructed and operated
within the City's Public Way (as defined below), and shall include all cables, wires, conduits,
ducts, pedestals, and any associated converter, equipment, or other facilities within the City's
Public Way, designed and constructed for the purpose of providing Communication Service.
This definition shall include such facilities as currently installed and any additional facilities as
are approved pursuant to Chapter 20.50, Wireless Communications Facilities, of the Edmonds
Community Development Code and which are allowed pursuant to an associated Right- of -Way
Construction Permit, as defined immediately below.
e. "Right -of -Way Construction Permit" or "Permit" shall mean that permit required
of Sprint by the City in order to (i) install new Facilities, (ii) perform routine maintenance
activities as to existing Facilities, or (iii) to acknowledge Permittee's access to its Facilities after
the fact, immediately following resolution of emergencies having necessitated Permittee's
immediate access of its existing Facilities, within the public ways of the City, pursuant to EMC
Chapter 18.60. Each Permit, issued by the City shall be attached to this Agreement as Exhibit
«B.99
f. "FCC" means the Federal Communications Commission or any successor federal
governmental entity hereto.
g. "Permittee" means Sprint Spectrum L.P., or the lawful successor, transferee, or
assignee thereof.
h. "Person" means an individual, partnership, association, joint stock company, trust,
corporation, or governmental entity.
2
i. "Public Way" shall mean the surface of, and any space above or below, any
public street, highway, freeway, bridge, path, alley, court, boulevard, sidewalk, parkway, lane,
drive circle, or other public right-of-way, including, but not limited to, public utility easements,
utility strips, or rights -of -way dedicated for compatible uses and any temporary or permanent
fixtures or improvements located thereon now or hereafter held by the City in the Service Area
which shall entitle the City and the Permittee the use thereof for the purpose of installing,
operating, repairing, and maintaining the Communication Facilities. Public Way also shall mean
any easement now or hereafter held by the City within the Service Area for the purpose of public
travel, or for utility or public service use dedicated for compatible uses, and shall include other
easements or rights -of -way as shall within their proper use and meaning entitle the City and the
Permittee to the use thereof for the purposes of installing or transmitting the Permittee's
Communication Service over poles, wires, cable, conductors, amplifiers, appliances, attachments,
and other property as may be ordinarily necessary and pertinent to the Communication Facilities.
Section 2. Authority Granted. The City hereby grants to the Permittee, its heirs,
successors, legal representatives, and assigns, subject to the requirements of Chapter 20.50 ECDC
and the terms and conditions hereinafter set forth, the right, privilege, and authority to construct,
reconstruct, upgrade, expand, operate, maintain, replace, and use all necessary equipment thereto
necessary for the operation of Permittee's Communication Facilities. However, only the
Permittee is authorized to place its Communications Facilities in, under, on, across, over,
through, along, or below the Public Way of the City described in a separate Site Use Agreement,
which will be attached as Exhibit "A" hereto.
Section 3. Construction Right -of -Way Use Permits Required
A. Prior to site -specific location and installation of any portion of its Communication
Facilities within a public way, the Permittee shall apply for and obtain a Construction Right -of -
Way Permit ECDC Chapter 18.60. In some situations, new or replacement structures may be
required to obtain a Conditional Use Permit depending on their size and location.
B. Unless otherwise provided in said Permit, the Permittee shall give the City at least
forty-eight (48) hours notice of the Permittee's intent to commence work in the Public Ways.
The Permittee shall file plans or maps with the City showing the proposed location of its
Communication Facilities and pay all duly established Right -of -Way Construction Permit and
inspection fees associated with the processing of the Right -of -Way Use Permit. In no case shall
any work commence within any public way without said Permit, except as otherwise provided in
this Master Use Agreement.
Section 4. Grant Limited to Occupation. Nothing contained herein shall be construed to
grant or convey any right, title, or interest in the Public Ways of the City to the Permittee, nor shall
anything contained herein constitute a warranty of title.
Section 5. Term of Master Use Agreement. The term of this Master Use Agreement
shall be for a period of Five (5) years from the date of acceptance as set forth in Section 32,
3
unless sooner terminated ("Initial Term"). The Master Use Agreement shall automatically renew
for three (3) additional five (5) year terms based upon the terms and conditions herein (each a
"Renewal 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 no
later than one hundred eighty (180) days prior to the expiration of the Initial Term hereof or any
subsequent Renewal Terms. If either party makes such a request, this Master Use Agreement shall
not renew unless and until the City and Permittee reach an agreement on said modification,
addition, and or deletions, and said agreement is approved by ordinance of the City Council. In the
event that agreement cannot be reached, this Master Use Agreement 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.
Section 6. Non -Exclusive Grant. This Agreement shall not in any manner prevent the
City from entering into other similar agreements or granting other or further Master Use
Agreements, Right -of -Way Use Permits, or Franchise Agreements 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
Public Works Director may assist the Permittee and such subsequent Permittee or Franchisee in
resolving the dispute. Further, this Agreement shall in no way prevent or prohibit the City from
using any of its Public Ways or affect its jurisdiction over them, or any part of them, and the City
shall retain power to make all necessary changes, ' relocations, repairs, maintenance,
establishment, improvement, dedication of the same as the City may deem fit, including the
dedication, establishment, maintenance, and improvement of all new Public Ways, and in
compliance with Section 7, below.
Section 7. Relocation of Communication Facility.
A. The Permitee 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 Public Works Director by reason of traffic
conditions, public safety, dedications of new Public Ways and the establishment and improvement
thereof, widening and improvement of existing Public Ways, street vacations, 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 Public Works Director, any
section of cable or any other facility required to be temporarily disconnected or removed.
Upon the reasonable request and prior written notice, in non -emergency situations at least
sixty (60) days notice, by the Public Works Director and in order to facilitate the design of City
street and right-of-way improvements, the Permittee agrees to, at its sole cost and expense,
locate, and if reasonably determined necessary by the City, to excavate and expose portions of its
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
4
its Facilities unless the Permittee's as -built plans and maps of its Facilities submitted pursuant to
Section 9 of this Agreement are reasonably determined by the Public Works Director to be
inadequate for purposes of this paragraph. The decision to require relocation of said Facilities in
order to accommodate the City's improvements shall be made by the Public Works Director upon
review of the location and construction of the Permittee's Facilities.
If the Public Works 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 thirty (30) d a y s ,
prior to the commencement of such improvement project, provide the Permittee
with written notice requiring such relocation. In the event that such relocation
requires land use approvals by the City, such notice period shall be extended by an
additional ninety (90) days. Provided, however, that in the event an
emergency posing a threat to public safety, health or welfare, or in the event of an
emergency beyond the control of the City and which will result in severe
financial consequences to the City, the City shall give the Permittee written
notice as soon as practicable; and
2. Provide the Permittee with copies of information for such improvement project
and a proposed location for the Permittee's Facilities so that the Permittee may
relocate its Facilities in other Public Ways in order to accommodate such
improvement project.
3. The Permittee shall complete relocation of its Facilities at no charge or expense to
the City so as to accommodate the improvement project at least ten (10) days
prior to commencement of the project. In the event of an emergency as described
herein, the Permittee shall relocate its Facilities within a reasonable time period
specified by the Public Works 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 are suitable to accommodate
the work which would otherwise necessitate relocation of the Facilities. If so requested by the
City, the Permittee shall submit additional information to assist the City in making such evaluation.
The City shall give each alternative proposed by the Permittee full and fair consideration, within
a reasonable time, so as to allow for the relocation work to be performed in a timely
manner. In the event the City ultimately determines that there is no other reasonable alternative,
the Permittee shall relocate its Facilities as otherwise provided in this Section.
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.
61
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 Public Works Director. These plans shall be provided at no cost to
the City, and shall include hard copies and digital copies in a format specified by the Public Works
Director.
Section 9. Work in Public Ways. During any period of relocation, construction, or
maintenance, all surface structures, if any, shall be erected and used in such places and positions
within said Public Ways and other public properties so as to interfere as little as possible with the
free passage of traffic and the free use of adjoining property. The Permittee shall at all times
post and maintain proper barricades and comply with all applicable safety regulations during
such period of construction as required by the ordinances of the City or the laws of the State of
Washington, including RCW 39.04.180 for the construction of trench safety systems.
During the progress of the work, the Permittee shall not unnecessarily obstruct the
passage of proper use of the Public Ways, and all work by the Permittee in the area covered by this
Agreement and as described in this Section shall be performed in accordance with City of
Edmonds Public Works Construction Standards and warranted for a period of two (2) years.
If either the City or the Permittee shall at any time after the initial installation of the
Facilities plan to make excavations in areas covered by this Agreement and as described in this
Section, the party planning such excavation shall afford the other, upon receipt of written request
to do so, an opportunity to share such an excavation. PROVIDED THAT:
A. Such joint use shall not unreasonably delay the work of the party causing the
excavation to be made or unreasonably increase its costs; and
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 trench are incompatible; and
2
D. Such joint use shall not interfere with the operation of the Communication
Facility.
The joint use provisions of this Section shall apply only to joint use by the City and the
Permittee. Nothing in this Section is intended to require the Permittee to afford other similar
users the opportunity to share the Permittee's excavations.
Section 10. Restoration after Construction. The Permittee shall, after installation,
construction, relocation, maintenance, removal, or repair of its Communication Facilities within
the Public Ways, restore the surface of said Public Ways and any other City -owned property which
may be disturbed by the work, to 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 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 two (2) year.
Section 11. Emergency Work — Right -of -Way Use Permit Waiver. In the event of any
emergency in which any of the Permittee's Communication Facilities located in, above, or under
any public way breaks, are damaged, cease to provide service, or if the Permittee's construction
area is otherwise in such a condition as to immediately endanger the property, life, health, or safety
of any individual, the Permittee shall immediately take the proper emergency measures to repair
its Facilities, to cure or remedy the dangerous conditions for the protection of property, life,
health, or safety of individuals without first applying for and obtaining a Right -of -Way
Construction Permit as required under this Agreement. However, this shall not relieve the
Permittee from the requirement of notifying the City of the emergency work and obtaining any
Permits necessary for this purpose after the emergency work. The Permittee shall notify the
City by telephone immediately upon learning of the emergency and shall apply for all required
Permits not later than the second succeeding day during which the Edmonds City Hall is open for
business.
Section 12. Dangerous Conditions, Authority for City to Abate. Whenever construction,
installation, or excavation of the communication Facilities authorized by this Agreement has
caused or contributed to a condition that appears to substantially impair the lateral support of the
adjoining public way, street, or public place, or endangers the public, street utilities, or City-
7
owned property, the Public Works 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 and any fines accrued pursuant to ECDC Chapter 20.110.
Section 13. Recovery of Costs. The Permittee shall be subject to all and Right -of -Way
Use Permit fees associated with activities undertaken through the authority granted in this
Agreement or under the laws of the City. Where the City incurs costs and expenses for review,
inspection, appraisal, audit, or supervision of activities undertaken through the authority granted in
this Agreement, or any ordinances relating to any subject not addressed in this Agreement, the
Permittee shall reimburse the City directly for any and all reasonable costs, after receipt of an
itemized bill.
In addition to the above, the Permittee shall promptly reimburse the City for any and all
reasonable costs the City incurs in response to any emergency involving the Permittee's
Communication Facilities, after receipt of an itemized bill.
The time of City employees shall be charged at their respective rate of salary, including
overtime if applicable, plus benefits. All billings will be itemized as to specifically identify the
costs and expenses for each project for which the City claims reimbursement. The billing may
be on an annual basis, but the City shall provide the Permittee with the City's itemization of
costs at the conclusion of each project for information purposes.
Section 14. Annual Consideration for Use of the Right -of -Way under this Master Use
Agreement:
A. For the purposes of this section, "New Support Structure(s)" means a monopole,
or similar structure erected solely for the purpose of installation of wireless antennas in
the Right -of -Way where previously no similar structure had existed.
B. For the purposes of this section, "Existing Support Structure(s)" means existing
utility poles, light poles or other similar approved structures that exist in the Right -of -
Way that can be used to support wireless antennas. Buildings are considered Existing
Support Structure(s) when used to support wireless antennas that encroach into or over the
Right of Way.
C. For the purposes of this section, "Replacement Structure(s)" means a structure
that is similar to an Existing Support Structure, but either taller and/or stronger than an
Existing Support Structure, and which replaces an Existing Support Structure for
purposes of placement of wireless antennas.
8
D. The compensation provided for in Subsection "F," below, shall be adjusted
annually, each year of the first five-year term, by an increase of five percent (5%). An
appraisal and site audit shall be conducted by the City and the parties shall meet in the
fourth (4th) year and prior to each renewal anniversary thereafter, to revisit 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 local
jurisdictions. Neither party shall unreasonably withhold its acceptance and approval of a
reasonable adjustment to the level of compensation so proposed by the other party under
this section. Permittee shall pay annual compensation prior to the 151h of January of each
year of this Agreement.
E. In the event that the Permittee's Facilities are out of service due to a relocation
under the provisions of Section 7 for the convenience of the City, a credit equal to the
prorated value of the time the Facilities are out of service shall be provided on the
subsequent year's compensation.
F. In consideration for each Site Use Agreement and the use of the Right -of -Way
described therein, Permittee shall commit to providing an annual payment for each
approved Facility reflected in each Site Use Agreement, all of which shall be attached as
Exhibit "A." The amount of the annual payment for the first five-year term shall be as
follows:
1. Antennas placed on a New Support Structure, equipment cabinets are in the
Right of Way, annual payment is Twelve Thousand Dollars ($12,000.00).
2. Antennas placed on a New Support Structure, where no equipment cabinets
are in the Right of Way, annual payment is Eleven Thousand Dollars ($11,000.00)
3. Antennas placed on an Existing Support Structure or Replacement Structure,
with equipment cabinet or other associated equipment located within the
public Right -of -Way, annual payment is Ten Thousand Dollars ($10,000.00).
4. Antennas placed on an Existing Support Structure or Replacement
Structure, where no equipment cabinet or other associated equipment is
located within the public Right -of -Way, annual payment is Nine Thousand Dollars
($9,000.00).
Consideration to the City under this Section for all sites constructed by Permittee shall be
memorialized in each Site Use Agreement and attached hereto as Exhibit "A" and is in addition to
any Construction Right -of -Way Permit fees.
Section 15. Grant Fee. As additional consideration for the right and privileges granted
hereunder, the Permittee agrees to pay, at the time of acceptance of this Agreement, a one-time
grant fee of Five Thousand Dollars ($5,000) to defray the City's legal and administrative costs and
expenses associated with negotiating and approving this Master Use Agreement, provided that
such expenses shall not be included in the reimbursement provisions set forth in Section 14 of this
Agreement.
E
Section 16. Indemnification and Waiver.
A. Permittee hereby releases, covenants not to bring suit and agrees to indemnify,
defend and hold harmless the City, its officers, employees, agents and representatives
from any and all claims, costs, judgments, awards or liability to any person arising from
injury, sickness, or death of any person or damage to property:
1. For which the negligent acts or omissions of Permittee, its agents,
servants, officers or employees in performing the activities authorized by
this Master Use Agreement are the proximate cause;
2. By virtue of the Permittee's exercise of the rights granted herein;
3. By virtue of the City's permitting Permittee's use of the City's Public
Ways or other public property that are the subject of this Agreement;
4. Based on the City's inspection or lack of inspection of work performed by
Permittee, its agents and servants, officers or employees in connection
with work authorized on the Public Ways or property over which the City
has control pursuant to this Agreement or pursuant to any other site -
specific Permit or other approval issued in connection with this
Agreement;
5. Arising as a result of the negligent acts or omissions of Permittee, its
agents, servants, officers or employees in barricading, instituting trench
safety systems or providing other adequate warnings of any excavation,
construction, or work upon the Public Ways, in any public way, or other
Agreement.
B. The provisions of Subsection "A" of this Section shall apply to claims by
Permittee's own employees and the employees of the Permittee's agents, representatives,
contractors, and subcontractors to which Permittee might otherwise be immune under
Title 51 RCW. This waiver of immunity under Title 51 RCW has been mutually
negotiated by the parties hereto, and Permittee acknowledges that the City would not
enter into this Agreement without Permittee's waiver thereof.
C. Inspection or acceptance by the City of any work performed by the Permittee at
the time of completion of construction shall not be grounds for avoidance of any of these
covenants of indemnification. Provided that Permittee has been given prompt written
notice by the City of any such claim, said indemnification obligations shall extend to
claims which are not reduced to a suit and any claims which may be compromised with
Permittee's consent prior to the culmination of any litigation or the institution of any
litigation. The City has the right to defend or participate in the defense of any such
claim, and has the right to approve any settlement or other compromise of any such
10
claim, provided that Permittee shall not be liable for such settlement or other compromise
unless it has consented thereto.
D. In the event that Permittee refuses the tender of defense in any suit or any claim,
said tender having been made pursuant to this Section, and said refusal is subsequently
determined by a court having jurisdiction (or such other tribunal that the parties shall
agree to the matter), to have been a wrongful refusal on the part of the Permittee, then
Permittee shall pay all of the City's costs for defense of the action, including all
reasonable expert witness fees, reasonable attorney's fees , and the reasonable costs and
fees to City associated with recovering under this Subsection.
E. The obligations of Permittee under the indemnification provisions of this Section
shall apply regardless of whether liability for damages arising out of bodily injury to
persons or damages to property were caused or contributed to by the City, its officers,
agents, employees or contractors except to the extent that such claims, actions, damages,
costs, expenses, and attorney's fees were caused by the negligence or any willful or
malicious action on the part of the City, its officers, agents, employees or contractors. In
the event that a court of competent jurisdiction determines that this Agreement is subject
to the provisions RCW 4.24.115, the parties agree that the indemnity provisions
hereunder shall be deemed amended to conform to said statute and liability shall be
allocated as provided therein.
F. Notwithstanding any other provisions of this Section, Permittee assumes the risk
of damage to its Communication Facilities located in the Public Ways and upon City -
owned property from such activities conducted by the City, its officers, agents,
employees and contractors, except to the extent any such damage or destruction is caused
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 Agreement. Such insurance certificate shall
evidence:
11
A. Comprehensive general liability insurance, written on an occurrence basis,
including contractual liability coverage, with limits not less than:
(1) $3,000,000.00 for bodily injury or death to each person; and
(2) $3,000,000.00 for property damage resulting from any one
accident.
B. Automobile liability for owned, non -owned and hired vehicles with a limit of
$3,000,000.00 for each person and $3,000,000.00 for each accident.
C. Worker's compensation within statutory limits and employer's liability insurance
with limits of not less than $1,000,000.00.
The liability insurance policies required by this Section shall be maintained by the
Permittee throughout the term of this Agreement, and such other period of time during which the
Permittee is operating without a Right -of -Way Construction Permit hereunder, or is engaged in
the removal of any of its Communication Facilities in the right of way. Payment of deductibles
and self -insured retentions shall be the sole responsibility of the Permittee. The insurance
certificate 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
cancelled, reduced in coverage, nor the intention not to renew be stated until at least thirty (30)
days after receipt by the City of written notice of the same via U.S. mail. Within fifteen (15)
days after receipt by the City of said notice, and in no event later than five (5) days prior to said
cancellation or non -renewal, the Permittee shall obtain and furnish to the City replacement
insurance certificate(s) meeting the requirements of this Section
Section 18. Abandonment and Removal of the Permittee's Communication Facilities.
Upon the expiration, termination, or revocation of the rights granted under this Agreement, the
Permittee shall remove all of its Communications Facilities from the Public Ways of the City
within ninety (90) days of receiving notice from the Public Works Director. Provided,
however, that the City may permit the Permittee's improvements to be abandoned and replaced
in such a manner as the parties shall agree, subsequent always to the City's standard construction
requirements for Right -of -Way use. Upon permanent abandonment, and Permittee's agreement
to transfer ownership of any Communication Facilities to the City, the Permittee shall submit to the
City a proposal and instruments for transferring ownership to the City. Any such Facilities
abandoned in place without City's consent and not removed within ninety (90) days of receipt of
12
notice thereof shall automatically become the property of the City, unless Permittee is prevented
from removing its Facilities by causes beyond its reasonable control including, but not limited to,
acts of God, war, or governmental restrictions. In such case, Permittee's time for performance of
its obligations under this section will be extended by a reasonable period of time, not to exceed
an additional thirty (30) days in any event, without City's consent thereto. Provided, however,
that nothing contained within this Section shall prevent the City from compelling the Pennittee
to remove any such Facilities through judicial action when the City has not consented to the
Permittee's abandonment of said Facilities in place.
Section 19. Construction Bond. Before undertaking any of the work, installation,
improvements, construction, repair, relocation or maintenance authorized by this Agreement, the
Permittee shall furnish a Right -of -Way Construction bond written by a corporate surety
acceptable to the City equal to at least 125% of the estimated cost of restoring the Public Ways
of the City to the pre -construction condition required by Section 11 of this Agreement. Said
bond shall be required to remain full force until sixty (60) days after completion of the
construction of Permittee's Communication Facilities and other improvements from the Public
Ways of the City, and said bond, or separate bond acceptable to the City, shall warrant all such
restoration work for a period of two (2) years. In the event that a bond issued to meet the
requirements of this Section is canceled by the surety, after proper notice and pursuant to the
terms of said bond, Permittee shall, prior to expiration of said bond, be responsible for
obtaining a replacement bond which complies with the terms of this Section.
Section 20. Modification. The City and the Permittee hereby reserve the right to alter,
amend or modify the terms and conditions of this Agreement upon the written agreement of both
parties to such alteration, amendment or modification. Said modifications shall be approved by the
City by ordinance and accepted by the Permittee consistent with Section 32 hereof.
Section 21. Forfeiture and Revocation. If the Permittee willfully violates or fails to
comply with any of the material provisions of this Agreement within thirty (30) days following
receipt of written notice of such violation or failure, or through willful misconduct or gross
negligence fails to heed or comply with any written notice given the Permittee by the City under
the provisions of this Agreement within thirty (30) days following receipt of such notice, then the
Permittee shall, at the election of the City Council, forfeit all rights conferred hereunder and this
Agreement may be revoked, terminated or annulled by the City Council after a hearing held upon
reasonable written notice to Permittee. The City Council may decide, after consideration of the
reasons for the Permittee's failure to comply with this Agreement, to allow the Permittee additional
time to cure before such termination or revocation. The City may elect, in lieu of the above, and
without prejudice to any of its other legal rights and remedies, to obtain an order from the
superior court having jurisdiction compelling the Permittee to comply with the provisions of this
Agreement and to recover its reasonable, documented damages and costs incurred by the City as a
direct result of the Permittee's failure to comply with the terms of this Agreement.
Section 22. City Ordinances and Regulations. Nothing herein shall be deemed to direct
or restrict the City's ability to adopt and enforce all necessary and appropriate ordinances
regulating the performance of the conditions of this Agreement, including any valid ordinance
13
made in the exercise of its police powers in the interest of public safety and for the welfare of the
public. The City shall have the authority at all times to control by appropriate regulations the
locations, elevation, manner or construction and maintenance of any Facilities by the Permittee,
and the Permittee shall promptly conform with all such regulations, unless compliance would
cause the Permittee to violate other requirements of the law.
Section 23. Survival. All of the provisions, conditions, and requirements of this
Agreement shall be in addition to any and all other obligations and liabilities the Permittee may
have to the City at common law, by statute, or by contract. The provisions, conditions, and
requirements of Sections 7, Relocation of Communication System; 9, Work in Public Ways; 10,
Restoration after Construction; 12, Dangerous Conditions, Authority for City to Abate; 16,
Indemnification and Waiver, 17, Insurance; and 18, Abandonment and Removal of the Pennittee's
Communication Facilities, shall survive the expiration or termination of this Master Use
Agreement, and any renewals or extensions thereof, and remain effective until such time as the
Permittee removes its Communication Facilities from the Public Ways, transfers ownership of
said Facilities to a third -party, or abandons said Facilities in place, all as provided herein. All of
the provisions, conditions, regulations and requirements contained in this Agreement shall further
be binding upon the heirs, successors, executors, administrators, legal representatives and assigns
of the Permittee; and all privileges, as well as all obligations and liabilities of the Permittee
shall inure to its heirs, successors, and assigns equally as if they were specifically mentioned
wherever the Permittee is named herein.
Section 24. Severability. In any section, sentence, clause, or phrase of this Agreement
should be held to be invalid or unconstitutional by a court of competent jurisdiction, such
invalidity or unconstitutionality shall not affect the validity or constitutionality of any other
section, sentence, clause, or phrase of this Agreement.
Section 25. Assig!iment. This Agreement may not be assigned or transferred without the
written approval of the City, such approval not to be unreasonably withheld or delayed, except
that the Permittee may freely assign this Agreement, in whole or part, to any parent, subsidiary,
or affiliated corporation, or as part of any corporate financing, reorganization, or refinancing. In
the case of transfer or assignment as security by mortgage or other security instrument in whole
or in part to secure indebtedness, such consent shall not be required unless and until the secured
party elects to realize upon the collateral. The Permittee shall provide prompt, written notice to the
City of any such assignment.
Section 26. Notice. Any notice or information required or otherwise provided as
between the parties under this Agreement shall be sent to the following addresses unless
otherwise specified by the parties:
City:
City of Edmonds
Engineering Division
121 5th Avenue N.
14
Edmonds, WA 98020
425 771-0220
Fax: 425-771-0221
Permittee:
Sprint Property Services
Mailstop: KSOPHT0101-Z2650
6391 Sprint Parkway
Overland Park, KS 66251-2650
with a mandatory copy to:
Sprint Law Department
Mailstop: KSOPHT0101-Z2020
6391 Sprint Parkway
Overland Park, KS 66251-2020
Attn: Real Estate Attorney
Notice shall be deemed provided upon receipt in the case of personal delivery, three (3) days
after deposit in the United States Mail in the case of regular mail, or the next day in the case of
overnight delivery.
Section 27. Entire Agreement. This Agreement constitutes the entire understanding and
agreement between the parties hereto as to the subject matter herein and no other agreements or
understandings, written or otherwise, shall be binding upon the parties upon approval and
acceptance of this Agreement.
Section 28. Attorneys Fees. If any suit or other action is instituted in connection with
any controversy arising under this Agreement, the prevailing party shall be entitled to recover all
of its costs and expenses including such sum as the court may judge reasonable for attorneys
fees, including fees upon appeal of any judgment or ruling.
Section 29. Non -waiver. Failure of the City to declare any such breach or default
immediately upon the occurrence thereof, or delay in taking any action in connection therewith,
shall not waive such breach or default, but the City shall have the right to declare any such
breach or default at any time. Failure of the City to declare one breach or default does not act as a
waiver of the City's right to declare another breach or default.
Section 30. Governing Law/Venue. This Agreement shall be governed by and construed
in accordance with the laws of the State of Washington. The venue and jurisdiction over any
dispute related to this Agreement shall be with the Snohomish County Superior Court.
Section 31. Acceptance. Within sixty (60) days after the passage and approval of this
ordinance, this Agreement may be accepted by Permittee by its filing with the City Clerk an
15
unconditional written acceptance thereof Failure of the Permittee to so accept this
Agreement within said period of time shall be deemed a rejection thereof, and the
rights and privileges herein granted shall, after the expiration of the sixty (60) day period,
absolutely cease and determine, unless the time period is extended by ordinance duly passed
for that purpose.
Section 32. Effective Date. This ordinance, being an exercise of a power
specifically delegated to the City legislative body, is not subject to referendum, and shall
take effect five (5) days after the passage and publication of an approved summary thereof
consisting of the title.
ATTEST/AUTHENTICATED:
LER ,SCO SEY
APPROVED AS TO FROM:
OFFICE OF THE CITY ATTORNEY:
By:
JEFF TARADAY, CITY ATTORNEY
FILED WITH THE CITY CLERK:
PASSED BY THE CITY COUNCIL
SIGNED BY THE MAYOR:
PUBLISHED:
EFFECTIVE DATE:
ORDINANCE NO.:
CIT F EDMONDS
N/""\ F
MAYOR DAVE EARLING
June 12, 2015
June 16, 2015
July 22, 2015
June 21, 2015
June 26, 2015
4001
17
SUMMARY ORDINANCE NO.4001
of the City of Edmonds, Washington
On the 16 t" day of June, 2015, the City Council of the City of Edmonds passed
Ordinance No. 4001. 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
Sprint Spectrum L.P., A MASTER USE AGREEMENT, TO INSTALL, OPERATE, AND
MAINTAIN WIRELESS COMMUNICATION FACILITIES WITHIN A CERTAIN
DESIGNATED PUBLIC RIGHT-OF-WAY OF THE CITY OF EDMONDS, STATE OF
WASHINGTON, PRESCRIBING CERTAIN RIGHTS, DUTIES, TERMS, AND
CONDITIONS WITH RESPECT THERETO, AND ESTABLISHING AN EFFECTIVE
DATE.
The full text of this Ordinance will be mailed upon request.
DATED this 17'h day of June, 2015.
SCO PASSEY, �CLJ
18
"PERMITTEE"
Sprint Spectrum L.P.
By: Sprint Spectrum L.P.
Print Name:
Its:
Date:
ACKNOWLEDGMENT
STATE OF
+n ) ss
COUNTY OF Kil I G� )
ttit11w NQV�0'
20 ( 4personally came
I CERTIFY that on , _ tit ) _ p y
before me and this person acknowledged under oath to my satisfaction, that:
(a) this person signed, sealed and delivered the attached document as (signors title) for
(company) the limited liability company named in this document;
(b) this document was signed and delivered by the corporation as its voluntary act
and deed, as the member of the limited liability company, on behalf of said limited liability
company.
�J
Notary Public
My Commission Expires: Orb
Notary Public
State of Washington
DANIELLE COSTA
My Appointment Expires Oct 27, 2017
{ WSS 53 l 638. DOC;1 /00006.900000/
19
EXHIBIT "A"
SITE USE AGREEMF,NT(S)
20
EXHIBIT "B"
PERMITS)
21
SITE USE AGREEMENT
This Site Use Agreement ("SUA"), entered into this day of 20 ("SUA Effective
Date") between CITY OF EDMONDS, hereinafter designated as "City" and SPRINT SPECTRUM L.P. a Delaware
Limited Partnership, hereinafter designated as "Permittee." Each may be called a "Party," or collectively they may be
called the "Parties."
1. This SUA is pursuant to Section 14, "Annual Compensation for Use of the Right of Way under this Master
Use Agreement," of that certain Ordinance No. /Master Use Agreement between City and Permittee dated
20 ("MUA"). All of the terms and conditions of the MUA are incorporated herein by this
reference and made a part hereof without the necessity of repeating or attaching the MUA. In the event of a
contradiction, modification or inconsistency between the terms of the MUA and this SUA, the terms of the MUA shall
govern. Capitalized terms used in this SUA shall have the same meaning described for them in the MUA unless
otherwise indicated herein.
2. Site No. and Name (if applicable)
CITY: _
PERMITTEE:
3. Permittee has established a Communications Facilities at where the
antennas and associated equipment are located on a Snohomish PUD utility pole in City's Right of Way as shown on
Attachment A attached hereto and incorporated herein, with the associated radio cabinets located on adjacent private
property.
4. In accordance with the MUA, Permittee shall pay to the City an annual fee to collocate on an Existing Support
Structure, where no equipment cabinet or other associated equipment is located within the public Right -of -Way,
in the annual amount of ($�,("Annual Fee") to commence as of
("Commencement Date"). Permittee shall make the Annual Fee payment to the City on or
before January 15`h of each year beginning on and each January 15`h thereafter. In
accordance with Section 14, for the first five (5) years of this SUA, the Annual Fee shall be increased by five (5)
percent, such escalation to occur on the anniversary of the Commencement Date. The Parties shall determine in the
fifth (5`h) year of the MUA what the reasonable compensation level should be under this SUA commencing at the
beginning of the sixth (60) year.
The term of this SUA shall be as set forth in Section 5 of the MUA
Notice Addresses:
City, address for rent and notice:
City of Edmonds
Engineering Division
121 5th Avenue N.
Edmonds, WA 98020
425 771-0220
Fax: 425-771-0221
Sprint Property Services
Mailstop: KSOPHTO 10 1 -Z2650
6391 Sprint Parkway
Overland Park, KS 66251-2650
with a mandatory copy to:
22
Sprint Law Department
Mailstop: KSOPHT0101-Z2020
6391 Sprint Parkway
Overland Park, KS 66251-2020
Attn: Real Estate Attorney
IN WITNESS WHEREOF, the parties hereto have set their hands and affixed their respective seals the day and year first
above written.
\.7I1►1�
WITNESS
ATTACHMENTS:
Attachment 1: Site Plan of Communications Facilities
City:
CITY OF EDMONDS:
BY:
PRINT NAME:
TITLE:
DATE:
Permittee:
SPRINT SPECTRUM L.P.:
BY:
PRINT NAME:
TITLE:
DATE:
***NOTARIZATIONS FOLLOW ON THE NEXT PAGE***
23
STATE OF
) ss.
COUNTY OF
I certify that I know or have satisfactory evidence that is the person who appeared before me, and said person
acknowledged that he/she signed this instrument, on oath stated that he/she was authorized to execute the instrument
and acknowledged it as the of to be the free and voluntary act of such party for the uses and purposes mentioned in
the instrument.
Dated:
Notary Public
Print Name
My commission expires
(Use this space for notary stamp/seal)
STATE OF
) ss.
COUNTY OF
I certify that I know or have satisfactory evidence that is the person who appeared before me, and said person
acknowledged that he/she signed this instrument, on oath stated that he/she was authorized to execute the instrument
and acknowledged it as the of to be the free and voluntary act of such party for the uses and purposes mentioned in the
instrument.
24
Dated:
(Use this space for notary stamp/seal)
Notary Public
Print Name
My commission expires
25
ATTACHMENT
SITE PLAN OF COMMUNICATION FACILITIES UNDER THIS SUA
26
Everett Daily Herald
Affidavit of Publication
State of Washington }
County of Snohomish } ss
Kathleen Landis being first duly sworn, upon
oath deposes and says: that he/she is the legal
representative of the Everett Daily Herald a
daily newspaper. The said newspaper is a legal
newspaper by order of the superior court in the
county in which it is published and is now and
has been for more than six months prior to the
date of the first publication of the Notice
hereinafter referred to, published in the English
language continually as a daily newspaper in
Snohomish County, Washington and is and
always has been printed in whole or part in the
Everett Daily Herald and is of general
circulation in said County, and is a legal
newspaper, in accordance with the Chapter 99
of the Laws of 1921, as amended by Chapter
213, Laws of 1941, and approved as a legal
newspaper by order of the Superior Court of
Snohomish County, State of Washington, by
order dated June 16, 1941, and that the annexed
is a true copy of EDH640667 ORDINANCE
NO. 4001 as it was published in the regular and
entire issue of said paper and not as a
supplement form thereof for a period of 1
issue(s), such publication commencing on
06/21/2015 and ending on 06/21/2015 and that
said newspaper was regularly distributed to its
subscribers during all of said period.
The amount of the fee for such publication is
$34.40.
Subscribed and sworn before me on this
9y day of
h
!t
Notary Public in and for the State of
Washington.
City of Edmonds • LEGAL ADS 114101416
SCOTT PASSEY
RECEIVED
JUL 0 6 2015
EDMONDS CITY CLERK
DEBRA ANN GRIGG
Notary Public
State of Washington
My Commission Expires
October 31, 2017
SUMMARY OF ORDINANCE
of the City of Edmonds, Washington
On the 16th day of June, 2015, the City Council of the City of
Edmonds passed the following Ordinance. A summary of the
content of said ordinance, consisting of Ube, is provided as follows;
ORDINANCE NO.4001
AN ORDINANCE OF THE CITY OF EDMONDS,
WASHINGTON. GRANTING TO SPRINT SPECTRUM L.P., A
DELAWARE LIMITED PARTNERSHIP, ITS MEMBER, A
MASTER USE AGREEMENT, TO INSTALL, OPERATE, AND
MAINTAIN WIRELESS COMMUNICATION FACILITIES
WITHIN A CERTAIN DESIGNATED PUBLIC RIGHT OFWAY
OF THE CITY OF EDMONDS, STATE OF WASHINGTON,
PRESCRIBING CERTAIN RIGHTS, DUTIES, TERMS, AND
CONDITIONS WITH RESPECT THERETO, AND
ESTABLISHING AN EFFECTIVE DATE.
The full text of this Ordinance will be malted upon request.
DATED this 17th day of June, 2015.
CITY CLERK, SCOTT PASSEY
fInlished; June 21, 2015. EDH64066
Everett Daily Herald
Affidavit of Publication
State of Washington)
County of Snohomish } ss
Kathleen Landis being first duly sworn, upon
oath deposes and says: that he/she is the legal
representative of the Everett Daily Herald a
daily newspaper. The said newspaper is a legal
newspaper by order of the superior court in the
county in which it is published and is now and
has been for more than six months prior to the
date of the first publication of the Notice
hereinafter referred to, published in the English
language continually as a daily newspaper in
Snohomish County, Washington and is and
always has been printed in whole or part in the
Everett Daily Herald and is of general
circulation in said County, and is a legal
newspaper, in accordance with the Chapter 99
of the Laws of 1921, as amended by Chapter
213, Laws of 1941, and approved as a legal
newspaper by order of the Superior Court of
Snohomish County, State of Washington, by
order dated June 16, 1941, and that the annexed
is a true copy of EDH636301 RE: SPRINT
SPECTRUM as it was published in the regular
and entire issue of said paper and not as a
supplement form thereof for a period of 1
issue(s), such publication commencing on
06/01/2015 and ending on 06/01/2015 and that
said newspaper was regularly distributed to its
subscribers during all of said period.
The amount of the fee for such publication, is
$37.84.
I
Subscribed and sworn before me on this
day of
s
Notary Public in and for the State of
Washington.
City of Edmonds- LEGAL ADS I t4101416
SCOTT PASSEY
RECEIVED
JUN 0 5 2015
EDMONDS CITY CLERK
DEBRA ANN GRIGG
Notary Public
State of Washington
My Commission Expires
October 31, 2017
y
ORDINAN{,,F NUTICE
�,j�MONDSCITYC UNCIL
On Tue;idiM June 9. 20,1& the Edmonds City Council will consider
passage of the lollowtnq ordinance:
AN ORDINANCE OF THE CITY OF EDMONDS,
WASHINGTON, GRANTING TO SPRINT SPECTRUM L.P., A
DELAWARE LIMITED PARTNERSHIP, ITS MEMBER, A
MASTER USE AGREEMENT, TO INSTALL, OPERATE, AND
MAINTAIN WIRELESS COMMUNICATION FACILITIES
WITHIN A CERTAIN DESIGNATED PUBLIC RIGHT-OF-WAY
OF THE CITY OF EDMONDS. STATE OF WASHINGTON,
PRESCRIBING CERTAIN RIGHTS, DUTIES, TERMS, AND
CONDITIONS WITH RESPECT THERETO, AND
ESTABLISHING AN EFFECTIVE DATE.
The Clly Council meeting will begin at 7:00 p.m. at the Council
f r
Etlmonds Additional information may be obtained at
the Office of the City Clark, 121 Sth Avenue North, Edmonds.
Telephone: (425) 775-2525.
Scott M. Passay, MMC
Edmonds City Clerk
Publlshed:June 1, 2016, EDH63630�
a4